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ANNOTATED  FORMS 

OF 

PLEADING  AND  PRACXJ# 

AT  /';.;•■ 

COMMON  LAW 


AS  MODIFIED  BY  STATUTES 

For  Use  in  All  Common-Law  States  and  Especially  Adapted  to  the 

States  of  Illinois,  Michigan,  Mississippi,  Florida,  Virginia, 

West  Virginia,  Maryland  and  District  of  Columbia 


BY 
JOHN  LEWSON 

OF    CHICAGO    AXD    SPRINGFIELD    BARS 

Author  of  "Monopoly  and  Trade-Reslraint  Cases" 


IN  THREE  VOLUMES 


VOLUME  I 


CHICAGO 

T.  H.  FLOOD  &  COMPANY 

1914 


T 

V.I 


COPYRIGHT  NINETEEN  HUNPRED  FOURTEEN 
BY 
JOHN  LEWSON 


Dear  Mr.  Flood  : 

In  this  restless  and  constructive  age  when  the  true  motives 
of  men  are  so  complex  and  so  difficult  of  discernment  and  still 
more  difficult  of  belief  and  trust,  the  dedication  of  a  work  to  its 
publisher  is  full  of  danger  and  may  tend  to  cut  both  the  author 
and  the  publisher.  But  I,  for  one,  dare  to  take  the  risk,  and  I 
shall  leave  it  to  you  to  assume  the  other.  It  might  be  asked,  why 
a  dedication,  why  dedicate  the  work  to  anyone.  My  answer  is 
that  established  custom  affords  the  opportunity  of  revealing  the 
true  inspirer  and  benefactor  of  a  literary  effort,  and  I  propose 
that  this  opportunity  shall  not  escape  me. 

For  years,  the  general  idea  of  this  work  was  in  your  mind 
awaiting  someone  to  carry  it  out.  You  stood  ready  and  willing 
to  sacrifice  a  large  sum  of  money  to  make  that  idea  bear  fruit. 
I  came,  and  you  entrusted  the  work  to  me.  The  idea  was  yours ; 
I  was  but  the  instrument. 

Thus,  the  commencement,  the  conclusion,  and  all  that  this 
work  attempts  to  be,  is  a  direct  result  of  your  influence  and 
substantial  support.  It  therefore  gives  me  great  pleasure  to  most 
cordially  dedicate  this  work  to  you ;  and  may  a  noble  and  learned 
profession  fully  justify  your  efforts  in  its  behalf. 

John  Lewson. 

To  Mr.  Laurence  J.  Flood. 


ui 

179031 


PREFACE 


It  has  been  correctly  said  that  the  remedy  is  the  life  of  the 
right ;  and  it  may  be  as  accurately  stated  that  no  remedy  at  law 
is  possible  without  proper  forms.  The  forms  of  an  action  are 
inseparable  from  the  right  itself.  Therefore,  it  often  occurs  that 
a  substantial  right  is  either  waived  or  it  is  completely  lost,  by  an 
omission  of  certain  formalities.  It  is  through  the  forms  of  the 
law,  that  the  entire  range  of  pleading  and  practice  becomes 
useful,  and  it  was  with  the  object  to  make  pleadings  and  prac- 
tice available  that  this  work  was  undertaken  and  developed. 

Common  law  forms  will  always  be  of  value  to  the  legal 
profession,  as  the  main  difference  between  common  law  and  code 
pleading  lies  in  the  manner  and  not  in  the  substance  of  pleading. 
Thus,  a  good  common  law  pleader  presents  the  different  phases 
of  a  cause  of  action  under  distinct  counts  and  includes  a  con- 
solidated count  to  cover  the  entire  action.  A  competent  code 
pleader  states  the  cause  of  action  in  a  single  count  or  complaint 
that  is  equivalent  to  the  consolidated  count  of  the  common  law 
pleader.  The  ultimate  object  of  the  two  modes  of  pleading  is 
necessarily  the  same,  the  modern  tendency  of  common  law  plead- 
ing being  toward  the  use  of  a  consolidated  count  as  against  the 
old  method  of  pleading  a  multiplicity  of  counts. 

It  will  be  observed  that  this  work  has  three  main  features — the 
general  principles  of  pleading  and  practice,  the  forms  or  prece- 
dents and  the  annotations. 

Little  need  be  said  about  the  first  division.  A  glance  at  the 
Contents  of  Volume  I  will  afford  a  sufficient  general  idea  of 
pleading  and  practice. 

With  reference  to  the  precedents  this  much  may  be  said  here. 
Precedents  are  general,  special  or  statutory.  General  precedents 
may  be  used  literally.  These  are  the  common  counts,  general 
pleas  or  issues,  general  replications,  etc.  The  statutory  prece- 
dents should  be  used  similarly.  But  special  precedents  are 
suggestive  only.    Great  care  must  be  exercised  in  their  use.    The 


Vi  PREFACE 

value  of  a  special  form  is  twofold:  it  shows  what  has  been 
considered  good  form  under  certain  circumstances;  and  it  sug- 
gests the  course  to  be  pursued  in  the  construction  of  a  similav 
form.  From  these  considerations  it  should  not  be  difficult,  in 
actual  practice,  to  draw  a  form  that  Avould  hold  good  in  a  case 
which  involves  similar  but  not  identical  facts.  On  account  of 
the  suggestive  character  of  special  forms  they  have  been  given 
substantially  as  they  have  occurred  in  actual  cases.  They  could 
have  been  shortened;  but  this  would  have  taken  away  much  of 
their  clearness  and  suggestive  force,  which  no  amount  of  ex- 
planation could  replace.  A  form  which  is  not  understood  is 
worse  than  no  form  at  all.  After  a  form  is  understood,  it  is 
comparatively  eas^^  to  change  it  to  conform  to  the  particular 
case  in  hand. 

In  gathering  material  for  annotations  several  definite  objects 
were  sought  to  be  accomplished  by  them.  It  was  not  simpl}^  to 
annotate  the  form.  To  an  effective  use  of  the  most  important 
forms,  one  must  possess  a  clear  and  comprehensive  knoAvledge 
and  appreciation  of  his  right  of  action  or  defense.  Therefore, 
one  of  the  objects  was  to  note  precisely  how  far  the  courts  have 
allowed  or  rejected  causes  of  actions  or  defenses.  Another  object 
was  to  fully  annotate  every  distinct  part  of  the  form.  And  still 
another  object  was  to  place  the  annotations  in  their  natural  and 
logical  positions.  Ordinarily,  annotations  follow  the  matter 
annotated.  This  has  a  tendency  to  greatly  limit  the  scope  of 
annotating  and  to  place  more  prominence  to  the  form  than  to  the 
annotations.  A  better  way,  it  was  thought,  was  to  treat  the 
forms  and  the  annotations  as  of  equal  importance  and  to  classify 
according  to  the  subject-matter  rather  than  to  place  the  annota- 
tions arbitrarily  below  or  above  the  forms. 

As  some  of  the  states  have  different  ways  of  citing  the  same 
class  of  cases,  it  has  been  deemed  advisable  to  follow  the  mode 
of  citation  that  prevails  in  each  state  in  preference  to  using  a 
uniform  citation  for  all  of  the  states.  Thus,  no  change  has  been 
made  in  the  manner  of  citing  Lyle  v.  Cass  Circuit  Judge,  a 
^lichigan  case,  although  it  would  have  appeared  differently  if 
it  was  harmonized  with  the  citation  of  similar  cases  in  Illinois. 
But  to  fac'ilitato  the  looking  up  of  cases  brought  by  or  against 
towns,  villages  and  cities,  this  class  of  cases  appears  under  the 
name  of  the  town,  village  or  city  and  not  under  "village  of," 
etc.    The  searcher  for  a  case  of  this  kind  has  usually  in  mind  the 


PREFACE  Vll 

name  of  the  municipality  and  is  not  concerned  by  the  fact 
that  it  is  a  village,  a  town  or  a  city.  Thus,  if  anyone  desires 
a  case  brought  by  or  against  Meridian  (city),  Ft.  Myers  (town) 
or  Ridgway  (village)  he  is  apt  to  turn  to  the  names  of  these 
municipalities  and  not  to  their  classes. 

The  arrangement  and  the  classification  of  a  work  has  become 
of  some  importance  to  the  profession.  Many  a  nice  point  of 
practice  may  easily  be  obscured  under  an  impractical  scheme  of 
classification.  Great  care  has  therefore  been  given  to  the  proper 
placing  of  the  subject  matter.  General  matter  has  been  placed 
under  general  headings ;  matter  which  is  of  limited  scope  will  be 
found  under  special  heads.  To  take  the  subject  of  parties  for 
illustration.  It  will  be  observed  that  this  subject  is  susceptible  of 
a  general  and  special  division.  For  this  reason  it  is  under  more 
than  one  head.  It  mil  be  found  under  parties  generally,  and 
also  under  the  different  forms  of  actions.  The  same  is  true  of 
defenses.  In  its  ordinary  sense,  the  defense  of  a  suit  has  special 
reference  to  the  defendant  alone.  But  under  special  circum- 
stances, as  where  the  defendant  alleges  new  matter  requiring  the 
plaintiff's  answer,  the  plaintiff  becomes  as  much  a  defendant  with 
reference  to  that  matter  as  the  defendant  is  in  regard  to  the 
matter  that  is  alleged  by  the  plaintiff'.  Therefore,  under 
"Defenses"  will  be  found  rules  and  principles  which  relate 
to  both  parties  to  the  suit,  depending  upon  the  particular  posi- 
tion they  occupy  during  its  progress.  So,  with  appeal  and  error, 
points  on  this  subject  most  naturally  arise  at  the  time  the  appeal 
is  prayed  and  allowed,  at  the  time  the  case  is  upon  review 
regardless  of  the  court  reviewing  it,  and  in  the  particular  court 
of  review.  Hence,  matters  of  appeal  and  error  have  been  classi- 
fied under  appeal  at  the  end  of  the  specific  action  or  proceeding 
where  the  points  peculiarly  relate  to  such  action ;  again  under 
Appeal  and  Error  as  a  separate  chapter ;  and  further,  under 
chapters  on  Appellate  Court  and  Supreme  Court.  All  general 
matter,  such  as  commencements  and  conclusions  are  contained 
in  the  first  volume.  But  when  a  form  has  a  special  commence- 
ment or  conclusion,  it  has  been  given  in  the  form  itself. 

A  classification  has  a  distinct  and  separate  place  in  legal 
literature,  and  should  not  be  confused  with  an  index.  Primarily, 
the  classification  serves  the  author  to  logically  arrange  the  sub- 
ject matter.  After  that  has  been  accomplished,  the  practical 
value  of  the  classification  is  secondary.    The  practitioner  is  not 


Vill  ,  PREFACE 

vitally  concerned  about  the  classification;  but  this  cannot  be 
said  of  the  index.  To  the  practitioner,  the  index  is  the  key  to 
the  book.  With  this  object  in  view,  the  index  of  this  work  has 
been  constructed;  and  it  is  hoped  that  it  may  prove  all  that 
could  be  desired. 

J.  L. 

Springfield,  Illinois. 


TABLE  OF  CONTENTS 


BOOK  ONE 
PAKT  I 

COMMENCEMENT   OF   ACTIONS 

Chapters  Page 

I     Theory  of  the  Case 3 

II     Causes  and  Forms  of  Actions 10 

III  Election  of  Remedies  19 

IV  Statute  of  Limitations  25 

V     Jurisdiction    46 

VI    Venue    51 

VII     Parties 57 

VUl     Costs 72 

IX     Praecipe 87 

X    Process 90 

PART  II 

PLEADING   AND   PRACTICE 

Chapters 

XI     Rules  of  Court 129 

XII    Pleading  in  General 132 

XIII  Declaration   146 

XIV  Appearance  186 

XV     Abatement  and  other  Dilatory  Pleas 194 

XVI     Demurrer 228 

XVII     Defenses  and  Pleas  in  Bar 258 

XVIII     Similiter 331 

XIX    Replication 333 

XX    Rejoinder  and  Subsequent  Pleadings 337 

ix 


X  TABLE   OF    CONTENTS 

BOOK  TWO 
PART  III 

COMMON   LAW   ACTIONS 

Chapters  Page 

XXI    Assumpsit    343 

XXII    Case 625 

XXIII  Personal  Injuries  783 

XXIV  Covenant    1145 

XXV    Debt    1149 

XXVI  Detinue 1225 

XXVII  Ejectment 1237 

XXVIII  Replevin  1278 

XXIX  Trespass    1319 

XXX  Trover  1370 

BOOK  THREE 
PART  IV 


STATUTORY   AND   OTHER   ACTIONS 

Chapters 

XXXI     Account 1385 

XXXII     Administration 1395 

XXXIII  Adoption 1528 

XXXIV  Ad  Quod  Damnum 1533 

XXXV     Agreed  and  Compromised  Case 1534 

XXXVI     Appeals,  Intermediate 1544 

XXXVII  Application  for  Judgment  and  Order  of  Sale . . .  1553 

XXXVIII     Arbitration 1630 

XXXIX     Arrest  for  Debt  and  Release 1638 

XL     Attachment 1650 

XLI     Attachment  in  Aid 1701 

XLII     Attachment  of  Water-craft 1708 

XLIII     Boundary  Lines 1719 

XLIV     Caveat  1729 

XLV     Certiorari   1732 

XLVI  City's  Incorporation,  Annexation  and  Discon- 
nection of  Territory 1783 

XLVII     Civil  Service 1788 

XLVIII     Condemnation    1792 


TABLE  OF   CONTENTS 


XI 


Chapters  Page 

XLIX     Confession  of  Judgment 1906 

L     Conservator  or  Committee 1911 

LI     Contempt 1920 

LIT     Coram  Nobis 1927 

LIII     Dependent  Children 1929 

LIV    Disbarment   1933 

LV     Distress  for  Rent 1952 

LVI  Drainage  Organization,  Assessment,  Dissolution 

and  Taxation 1959 

LVII     Elections,  Contest   2038 

LVIII     Forcible  Detainer 2083 

LIX     Garnishment   2097 

LX     Guardianship    2126 

LXI     Habeas  Corpus 2172 

LXII     Inheritance  Tax 2189 

LXIII     Liens'  Release 2214 

LXIV    Lost  Records 2217 

LXV    Lunacy 2222 

LXVI     Mandamus 2253 

LXVII     Motion  for  Judgment 2370 

LXVIII     Ne  Exeat 2376 

LXIX     Outlawry  2381 

LXX     Prohibition    2382 

LXXI     Quo  Warranto 2389 

LXXII     Roads  and  Bridges 2440 

LXXIII     Schools 2473 

LXXIV    Scire  Facias 2493 

LXXV     Special  Assessments 2508 

LXXYI     Special  Taxation 2578 

LXXVII     Taxation 2614 

LXXVIII     Township  Organization  and  Taxation 2635 

LXXIX     Villages    2640 

LXXX    Writ  Ad  Quod  Damnum 2647 

BOOK  FOUR 
PART   V 

MISCELLANEOUS   FORMS  AND  PROCEEDINGS 

Chapters 

LXXXI    Affidavits   2651 

LXXXII     Amendment   2654 


Xll 


TABLE   OF    CONTENTS 


Chapters  Page 

LXXXIII     Notice   2659 

LXXXIV     Change  of  Venue 2661 

LXXXV    Removal  of  Causes 2672 

LXXXVI     Continuance 2678 

LXXXVII     Motions  and  Petitions 2683 

LXXXVIII     Stipulations  2689 

LXXXIX     Evidence  and  Depositions 2697 

XC     Trial   2723 

XCI     Instructions 2731 

XCII    Propositions  of  Law 2746 

XCIII     Special  Verdict  and  Findings  of  Fact 2748 

XCIV    Verdict 2754 

XCV    Auditors  and  Referees 2763 

XCVI     Orders  and  Judgments 2777 

XCVII     Particular  Judgments 2793 

XCVIII    New  Trial 2809 

XCIX    Arrest  of  Judgment 2824 

C     Execution 2831 

CI    Remanded  Cause 2861 

PART  VI 

APPELLATE  PROCEDURE 

Chapters 

CII     Appeal  and  Error 2871 

cm     Appellate  Court 3047 

CIV    Supreme  Court 3072 

PART  VII 

CITY   COURTS 


Chapters 

CV     Municipal  Courts 


,3107 


BOOK   ONE 


PART  I 
COMMENCEMENT  OF  ACTIONS 


ANNOTATED   FORMS  OF   PLEADING 
AND  PRACTICE 


CHAPTER    I 

THEORY  OF  THE  CASE 

8§  §§ 

1  Generally  4  Pleading 

2  Wrong  theory  5  Estoppel  and  discontinuance 

3  Correct  theory  6  Appeal  and  error 

1  Generally 

The  scheme  or  plan  of  the  legal  ground  or  grounds  upon  which 
an  action  is  prosecuted,  or  upon  which  an  action  is  defended, 
constitutes  the  theory  of  the  case  or  the  theory  of  the  defense. 
An  action  is  about  to  be  commenced,  what  is  the  nature  and 
character  of  the  liability  ?  Is  it  contract,  or  is  it  tort  ?  Does  it 
arise  from  general  liability,  or  does  it  rest  upon  some  special 
relationship,  such  as  master  and  servant,  agency,  or  the  like? 
What  shall  be  the  form  of  the  action  ?  Assuming  that  an  action 
was  begun,  and  a  party  has  been  called  upon  to  defend  it,  what 
general  or  special  course  must  he  pursue  ?  Should  he  attack  the 
jurisdiction  of  the  court  ?  Should  the  defect  in  the  process  first 
receive  his  attention?  Or,  should  he  enter,  at  once,  upon  the 
merits  of  his  defense?  And  if  the  latter,  what  was  the  theory 
upon  which  the  plaintiff  has  proceeded,  and  is  it  the  one  he 
should  not  have  adopted  ?  All  these,  and  many  other  questions, 
present  themselves  at  the  very  threshold  of  a  proceeding  and 
require  an  accurate  solution.  It  will  thus  be  seen,  that  the 
theory  or  theories  of  an  action  or  of  a  defense,  is  essential  for 
the  marshaling  of  the  facts,  for  the  preparation  of  the  pleadings, 
for  the  presentation  of  causes  or  defenses,  and  for  the  trial  and 
the  disposition  of  all  legal  controversies.  The  theory  of  an  action 
or  of  a  defense  is  to  a  civil  suit,  what  the  motive  is  to  the  un- 

3 


4  ANNOTATED   FORMS   OP   PLEADING   AND   PRACTICE 

raveling'  of  a  t;r>minal  prosecution.  Therefore,  this  theory- 
should  be  decidedupou  as  soon  as  practicable.  In  so  far  as  each 
,  pariy  t^  iliej'jitig&tiep  is  concerned,  the  theory  of  the  action  or 
of  the  defense  should  not  be  left  for  development  upon  the  trial, 
4ifi|r  upon- Appeal  or  error.  It  is  true,  that  in  some  instances,  the 
•fhobty-'" of 'an  action,  or  of  a  defense,  is  simple  and  of  little 
practical  value.  But  it  is  also  a  fact,  that  there  are  many  times 
when  the  determination  of  the  proper  theory  of  the  action  or  of 
the  defense  proves  to  be  of  the  utmost  importance,  and  that  it 
is  likely  to  be  overlooked,  unless  special  attention  be  given  to 
it  at  the  proper  time.  For  the  ascertainment  of  a  reliable  theory 
of  an  action  or  of  a  defense,  a  party  should  be  in  possession 
of  all  of  the  provable  facts  necessary  to  support  his  position; 
not  alone  for  the  establishment  of  a  pi'ima  facie  case,  but  also 
for  rebuttal.  Upon  the  adoption  of  a  certain  theory  of  pro- 
cedure, it  should  be  adhered  to  from  the  inception  of  the  action, 
or  of  its  defense,  to  its  final  termination. 

2  Wrong  theory 

The  consequences  that  follow  a  misapprehended  theory  of  an 
action  is  illustrated  by  the  following  cases :  In  the  Hayes  case,^ 
a  collector  of  garbage  picked  up  an  electric  wire  in  an  alley  and 
was  killed.  His  administrator  brought  an  action  against  the  city 
and  a  telephone  company  upon  three  theories  of  liability ;  first, 
negligence  of  the  city;  second,  negligence  of  the  telephone 
company ;  and  third,  liability  of  the  telephone  company  for  the 
city's  negligence.  No  effort  was  apparently  made  to  try  the 
case  upon  the  correct  theory,  which  was  the  liability  of  the 
telephone  company  for  the  city's  negligence.  As  a  result,  a 
jury  found  the  city  not  guilty,  which  disposed  the  first 
theory.  On  appeal  to  the  appellate  court,  that  court  found  the 
telephone  company  not  guilty,  which  disposed  the  second 
theory.  And  on  further  appeal  the  supreme  court  decided  that 
the  third  theory  could  not  be  sustained  on  account  of  the  pre- 
vious findings.  Thus,  an  otherwise  meritorious  cause  of  action 
was  disposed  of  against  the  injured  party.  The  Thompson  case  2 
proceeded  on  the  theory  that  the  defendant  owed  to  the  plaintiff 
the  duty  to  ring  a  bell ;  whereas,  the  actionable  duty  was  not  to 
wantonly  or  wilfully  injure  the  plaintiff.     Apparently,  in  the 

1  Hayes  v.  Chicago   Tel.  Co.,   218  2  Thompson  v.  Cleveland,  C,  C.  & 

111.  414    (1905).  St.  L.  R7.  Co.,  226  111.  542  (1907). 


THEORY    OF    THE   CASE  5 

Skszypczak  case^  the  omission  in  the  declaration  to  include  a 
count  charging  wilful  negligence  and  to  folloAv  up  the  charge 
by  proper  testimony,  caused  the  loss  of  a  seven  thousand  dollars' 
judgment.  In  the  Huhbardston  case"^  the  plaintiff  proceeded 
upon  the  theory  of  rescision  when  he  should  have  sued  for  a 
breach  of  the  contract.  In  the  Henning  case,^  a  misconceived 
theory  of  the  cause  of  action  resulted  in  the  mis-statement  of  the 
cause  and  in  the  making  of  improper  parties  defendant.  The 
Stoudt  case  ^  shows  that  a  trial  judge 's  erroneous  theory  of  an 
action  will  effect  all  of  his  rulings,  and  accomplish  a  miscarriage 
of  justice.  The  Lemon  case  ^  was  reversed  because  the  trial 
court  directed  a  verdict  upon  the  wrong  theory.  In  the  Ball 
case,^  the  plaintiff  framed  her  declaration  upon  a  single  theory 
of  liability.  On  the  trial,  the  case  was  submitted  upon  a  dif- 
ferent theory,  the  plaintiff  recovering  a  judgment  of  fifteen 
hundred  dollars.  The  appellate  court  affirmed  this  judgment; 
but  the  supreme  court  reversed  and  remanded  the  cause 
principally  on  the  ground  that  a  theory  was  pursued  which 
found  no  foundation  in  the  pleadings.  In  the  East  St.  Louis 
case^  the  proceedings  were  based  upon  a  paving  ordinance 
requiring  the  payment  for  a  local  improvement  to  be  made 
from  special  taxation  of  contiguous  property.  The  petition  for 
the  assessment  denominated  the  proceeding  as  a  "Special  assess- 
ment for  a  local  improvement."  The  commissioner  who  was 
appointed  to  spread  the  assessment  named  the  proceeding  a 
"Special  assessment  by  special  taxation  of  contiguous  prop- 
erty;" but  in  making  up  the  roll  and  spreading  the  assessment, 
he  acted  as  in  proceedings  to  levy  a  special  assessment  and  not 
a  special  tax.  In  the  lower  as  well  as  in  the  supreme  court, 
the  case  was  presented  and  tried  as  a  special  assessment  pro- 
ceeding. The  case  w'as  reversed  and  remanded  on  account  of 
the  conflicting  theories  that  were  thus  pursued.  In  the  Thomas 
case^^  an  appeal  was  uselessly  prosecuted  to  the  supreme 
court.     The  action  was  forcible  detainer.     The  appellant  pro- 

3  Belt  Er.  Co.  v.  Skszypczak,  225  s  Ball  v.  Evening  American  Pub- 
Ill.    242.   245    (1907).      "                           lishing   Co.,    237    lU.   592,   608,   609 

4  Hubbardston     Lumber     Co.     v.       (1909). 

Bates,  31  Mich.  158,  169  (1875).  s  East  St.  Louis  v.  Illinois  C.  E. 

5  Henning    v.    SampseU,    236    HI.       Co.,   238   111.    296    (1909). 

375,  381    (1908).  lo  Thomas  v.  Olenick,  237  HI.  167 

6  Stoudt    V.    Shepherd,    73    Mich.       (1908). 
588,   599    (1889). 

~  Lemon    v.    Macklem,    157    Mich. 
475  (1909). 


6  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

ceeded  upon  the  theory  that  a  freehold  was  involved  in  that 
action;  whereas,  the  title  to  premises  cannot  be  questioned  in 
such  an  action.  So,  in  the  Roberts  case,^'^  which  was  an  action  of 
trespass  quare  clausum  fregit  to  which  a  plea  of  liberum  tene- 
mentum  was  pleaded,  it  was  held  that  ordinarily  an  appeal 
may  be  taken  directly  to  the  supreme  court,  but  that  an  appeal 
lies  to  the  appellate  court  when  the  case  is  tried  on  the  sole 
theory  of  a  right  to  possession,  and  not  of  title.  In  Wiard  v. 
Semken,^^  the  simple  failure  to  understand  what  constitutes  the 
gist  of  the  action  of  detinue  caused  considerable  confusion  in  the 
pleadings  and  required  two  courts  to  pass  upon  them. 

3  Correct  theory 

The  ascertainment  of  rights,  the  determination  of  the  rele- 
vancy of  evidence,  and  the  application  of  instructions  to  the 
evidence  were  made  possible  in  the  following  cases  by  a  clear 
understanding  of  the  true  theory  upon  which  each  party 
proceeded  in  the  cause.  In  the  Chew  case,^^  a  railroad  company 
entered  into  a  contract  with  general  contractors  for  the  con- 
struction of  its  railroad.  The  general  contractors  procured  a 
subcontractor  to  deliver  to  them  certain  ties  for  the  construction 
of  the  road.  For  part  of  the  ties,  the  subcontractor  was  paid; 
for  the  remainder,  no  payment  was  received  by  the  subcon- 
tractor. Subsequently  the  railroad  company  consolidated  with 
another  company.  The  subcontractor  brought  an  action  of 
assumpsit  against  the  latter  company  for  the  unpaid  portion  of 
the  ties;  in  which  action,  he  recovered  judgment.  In  deter- 
mining the  liability  of  the  defendant  company,  the  supreme 
court,  in  substance  said,  that  the  theory  upon  which  the  plaintiff 
must  have  recovered  and  was  entitled  to  recover  was  that  the 
ties  were  delivered  in  pursuance  of  a  contract  for  the  construc- 
tion of  the  railroad,  that  the  defendant  company,  in  taking  over 
the  railroad  as  a  part  of  the  consolidation,  converted  the  ties 
not  paid  for  to  its  own  use,  that  it  was  benefited  by  the  con- 
version, and  that  if  there  was  a  partial  tortious  taking,  the 
plaintiff  could  waive  the  tort  and  could  recover  in  indebitatus 
assumpsit.     In  the  Mee  case,^'^  the  simple  but  sharp  conflict 

"Douglass  Park  Bldg.  Ass'n.  v.  is  Toledo,    W.    &    W    By     Co     v 

Roberts,  218  111.  454,  457   (1905).  Chew,  67  111.  378,  382    (1873).' 

12  Wiard  V.  Semken,  2  App.  D.  C.  i*  Chicago  Union  T.  Co.  v.  Mee 

424    (1894).  218  111.  9,  12   (1905). 


THEORY   OF    THE    CASE  7 

in  the  evidence  supporting  the  different  theories  of  the  parties 
involved  the  consideration  of  a  number  of  questions,  such  as, 
the  necessity  of  giving  correct  instructions,  the  burden  and 
shifting  of  proof,  the  exercise  of  ordinary  care,  the  prepon- 
derance of  the  evidence,  and  the  ultimate  question  of  liability. 
The  action  was  case  for  an  injury  caused  by  a  collision  between 
a  street  car  and  a  wagon.  The  plaintiff's  theory  was  that  the 
car  ran  into  the  wagon  before  it  left  the  car  tracks  and  while 
a  part  of  the  rear  end  of  the  wagon  was  still  on  the  track.  The 
defendant  claimed  that  the  plaintiff's  wagon  had  left  the  track, 
and  had  gone  a  sufficient  distance  to  justify  the  motorman  to 
pass  the  wagon,  but  that  after  the  plaintiff  had  driven  his 
wagon  off  the  track,  he  ran  against  a  telephone  or  telegraph 
pole,  and  that  he  was  either  forced  to  and  did  back  his  wagon 
into  the  track,  or  that  his  horse  voluntarily  so  backed  the  wagon 
and  thereby  struck  the  car.  Armstrong  v.  Wilcox  ^^  involved  a 
clear  understanding  of  the  different  theories  upon  which  the 
evidence  was  introduced  and  an  ascertainment  of  which  of  the 
theories  found  the  better  support  in  the  proofs.  In  the  Kies- 
wetter  case,^^  the  plaintiff,  in  an  action  on  a  life  insurance 
contract,  attempted  to  prove  the  insanity  of  the  insured  to  avoid 
the  self-destruction  clause  contained  in  the  contract.  Objection 
was  promptly  made  to  the  introduction  of  the  evidence;  where- 
upon it  was  ruled  out.  The  ruling  was  approved  of  by  the 
reviewing  court  upon  the  ground  that  the  plaintiff's  theory  of 
her  cause  of  action  was  wrong.  So,  in  the  Hart  case  ^"^  complaint 
was  made  that  the  trial  court  permitted  incompetent  evidence; 
but  the  revie^\ang  court  overruled  the  objection  by  ascertaining 
the  theory  upon  which  the  declaration  proceeded  and  by 
reconciling  the  evidence  with  that  theory.  The  McNamara 
case  ^^  was  an  action  of  replevin.  The  plaintiff  proceeded 
througout  the  trial  upon  the  theory  that  he  was  the  owner  of  the 
entire  property,  to  the  exclusive  possession  of  which  he  was  en- 
titled ;  whereas,  the  defendant  claimed  that  he  had  an  interest  in 
the  property  with  the  plaintiff.  In  passing  upon  the  instructions 
in  the  case,  it  was  necessary  to  have  in  mind  these  contradictory 
claims.      In    the    Ball    case^^   an    instruction   was    considered 

15  Armstrong  v.   Wilcox,   57   Fla.  is  McNamara  v.   Godair,   161   HI. 
30,  31   (1909).  228,   233    (1896). 

16  Kiesewetter  v.   Maccabees,   227  i9  Ball  v.  Evening  American  Pub- 
Ill,  48,  52  (1907).  lishing  Co.,  supra. 

17  Hart  V.  Wabash  S.  Ev.  Co.,  238 
Dl.    336,    338,    339    (1909), 


8  ANNOTATED  FORMS  OF  PLEADING  AND  PRACTICE 

erroneous  because  it  permitted  a  recovery  upon  a  different 
theory  from  that  which  was  justified  by  the  declaration.  So, 
in  the  Christy  case,^^  an  instruction  was  offered,  which,  if  it  had 
been  given  as  presented,  would  have  misled  the  jury.  The  trial 
court  modified  the  instruction,  and  gave  it.  This  was  urged  as 
error,  but  the  reviewing  court  approved  of  the  modification  on 
the  ground  that  the  various  theories  of  liability  that  were  pre- 
sented by  the  declaration  justified  the  trial  court's  action, 

4  Pleading 

A  pleader  is  not  confined  to  a  single  theory  of  liability  or 
defense.  He  may  frame  his  pleadings  upon  as  many  different 
views  of  liability  or  defense  as  appear  to  him  to  be  necessary .2  ^ 
But  no  antagonistic  theories  should  be  injected  into  a  case,  as 
they  lead  to  uncertainty,  confusion  and  error.^s 

5  Estoppel  and  discontinuance 

The  adoption  of  a  specific  theory  of  an  action  or  of  a  defense 
may  operate  as  an  estoppel  against  the  party  making  the  choice, 
or  it  may  amount  to  a  discontinuance  of  the  cause  against  one 
or  more  of  the  defendants.  Thus,  in  the  Siegel  case^^  there 
was  a  protracted  and  expensive  trial  of  a  condemnation  suit 
upon  an  agreed  theory  on  the  proper  elements  of  damages  to  be 
allowed.  At  the  end  of  the  trial,  one  of  the  parties  attempted 
to  repudiate  this  theory.  On  the  ground  of  estoppel,  the  trial 
and  the  supreme  courts  refused  to  permit  it  to  be  done.  So,  in 
the  Trah  case  ^^  a  party  was  estopped  from  asserting  important 
rights  by  entering  into  a  stipulation.  The  Strohschein  case  ^^ 
was  an  action  of  assumpsit  against  co-partners  for  work  and 
labor  brought  before  a  justice  of  the  peace.  Judgment  was 
rendered  by  the  justice  against  all  of  the  defendants.  On  appeal 
by  one  of  them,  which  was  authorized  by  statute,  a  judgment 
was  rendered  against  the  one  who  appealed.  This  judgment  was 
reversed,  on  further  appeal,  on  the  ground  of  discontinuance, 
because  the  only  theory  upon  which  the  plaintiff  could  have 
recovered  in  that  case  was  that  of  joint  liability. 

20  Christy  V.  Elliott,  216  HI.  31,  23  Metropolitan  W.  S.  E.  E.  Co. 
48    (1905).  V.  Siegel,  161  HI  638,  646   (1896). 

21  Christy  v.  Elliott,  supra.  24  Grant   Park   v.    Trah,    218    111. 

22  Illinois  C.  E.  Co.  v.  Abrams,  84  516,  520    ri905). 

Miss.    456,    464    (1904);    Grubb    v.  25  strohschein     v.     Kranich,     157 

Milan,  249  111.  456,  462,  465  (1911).       Mich.  335,  338   (1909). 


THEORY   OF   THE  CASE  tf 

6  Appeal  and  error 

A  party  will  not  be  permitted  to  try  his  case  upon  one  theory 
and  to  present  it  for  review  upon  another  theory.^^ 

Upon  review,  the  theory  of  the  case  should  be  determined  from 
the  pleadings,  the  evidence,  and  the  instructions  of  both  parties, 
and  not  from  the  argument  of  counsel.-'^ 

26  United    States    Wringer   Co.    v.  27  Chicago  City  Ey.  Co.  v.  Shaw, 

Cooney,   214   111.   520,    524    (1905);       220  111.532,534(1906). 
Davis  V.  Illinois  Collieries  Co.,  232 
111.  284,  291  (1908). 


CHAPTER    II 


CAUSES  OF  ACTIONS 


IN  GENERAL 


7  Terms  defined 

8  Abolishing    forms 

effect 

9  Common    law    and 

actions,   nature 


of    actions, 
statutory 


EX  CONTRACTU  ACTIONS 

10  Acceptance,   signature 

11  Maturity 

12  Demand 

EX  DELICTO  ACTIONS 

13  Act  of  God 

14  Continuous  cause 

15  Damages,  permanent  and  tem- 

porary,  test,   measure   of 

SURVIVORSHIP 

16  Statutory  actions 

17  Test 


FORMS  OF  ACTIONS 

§§ 

18  Enumeration    of    actions 

ACTIONS 

19  Dog  license,  statutory  penalty 

20  Drainage    benefits,    upper    and 

lower  districts 

21  Farm     crossings,     notice    and 

service 

22  Goods  in  transit 

23  Illegal  contracts 

24  Lights  in  subway 

25  Municipality,  bad  faith  and  col- 

lusion, practice 

26  Penalties,  foreign 

27  Surety 

28  Taxes,  voluntary  payment 

29  Telegraph  poles,  rental 

30  Transportation,  refusal 


IN  GENERAL 


7  Terms  defined 


The  terms  "right  of  action"  and  "cause  of  action"  are 
equivalent  expressions.  The  term  includes  every  fact  that  is 
necessary  for  the  plaintiff  to  prove  to  entitle  him  to  recover  and 
every  fact  that  the  defendant  has  a  right  to  traverse.  A  cause 
accrues  when  facts  exist  which  authorize  one  party  to  maintain 
an  action  against  another.  ^  The  particular  mode  by  which  a 
right  is  required  to  be  enforced  is  called  the  form  of  an  action. 

8  Abolishing  forms  of  actions,  effect 

The  distinctive  nature  of  actions  are  not  affected  by  the 
abolition  of  the  forms  of  action  or  the  adoption  of  the  new  ones.^ 

1  Walters  v.  Ottawa,  240  111.  259,  2  Stirling  v.  Garrittee,  18  Md.  468 

263   (1909).  (1862). 

10 


CAUSES  OP   ACTIONS  11 

9  Common  law  and  statutory  actions,  nature 

A  common  law  and  a  statutory  liability  are  different  and 
distinct  causes  of  action,  the  allegations  and  proof  which  are 
necessary  to  make  out  a  case  under  each  being  materially 
different.3 

EX  CONTRACTU  ACTIONS 

10  Acceptance,  signature 

A  contract  is  binding  upon  a  party  without  his  signature 
thereto,  if  his  assent  to  the  contract  is  expressed  by  some  overt 
act.  But  the  mere  mental  intention  to  accept  an  offer,  however 
deliberate  that  may  seem,  is  insufficient  as  an  acceptance.^ 

11  Maturity 

The  maturity  of  the  indebtedness  before  the  institution  of  a 
suit  thereon  is  essential  to  the  right  of  recovery  in  an  ordinary 
common  law  action."'  No  ex  contractu  action  is  maintainable 
before  a  demand  is  due.^ 

12  Demand 

A  demand  before  suit  is  necessary  when  the  contract  is  to  pay 
a  collateral  sum  upon  request,  or  when  the  contract  is  to  deliver 
any  onerous  property  on  demand,  without  specifying  the  time 
or  place  of  delivery.  A  demand  is  not  necessary  when  the 
contract  is  founded  upon  a  precedent  debt  or  duty,  as  in  case 
of  a  bond,  single  bill,  or  for  money  lent,  or  is  for  the  payment 
of  a  collateral  sum  on  a  day  certain,  or  otherwise  than  upon 
request,  or  when  the  debt  or  duty  arises  immediately  upon  the 
performance  of  the  consideration.'^  The  making  of  a  demand 
for  the  performance  of  a  contract  is  a  condition  precedent  to 
the  institution  of  an  action  for  a  breach  of  it,  unless  the  demand 
has  been  waived,  or  for  some  lawful  reason  has  been  dispensed 
with.8 

3  Bradley  v.   Chicago -Virden  Coal  e  Niekerson    v.    Babcock,    29    111. 

Co.,  231  111.  622,  627-628   (1908).  497,    500    (1863). 

*  Clark  V.  Potts,  255  111.  138,  188  t  Minor  v.  Michie,  Walker  24,  29 

(1912).  (Miss.  1818). 

5  Stitzel  V.  Miller,  250  111.  72,  76  «  Manning  v.   West,   6  Ciish.   463, 

(1911).  465   (Mass.   1850). 


I  7S03^ 


12  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

The  insolvency  of  a  debtor  dispenses  with  the  necessity  for 
making  a  demand  before  instituting  suit.^ 

EX  DELICTO  ACTIONS 

13  Act  of  God 

The  natural  causes  which  exclusively  produce  an  injury  or  a 
loss  and  which  could  not  have  been  prevented  by  human  care, 
skill,  and  foresight  constitute  an  act  of  God. 

An  act  of  God  excuses  an  injury  when  it  is  the  proximate  and 
sole  cause  of  the  injury :  an  act  of  God  does  not  excuse  an  injury 
which  is  the  result  of  negligence  and  an  act  of  God  combining 
as  an  active  co-operative  cause  of  the  injury. 

This  rule  is  applicable  to  telegraph  companies  for  the  reason 
that  they  are  required  to  use  a  high  degree  of  care  and  skill  in 
the  correct  and  prompt  transmission  of  messages.  ^^ 

14  Continuous  cause 

An  injured  party  has  a  separate  cause  of  action  for  each 
•wrongful  or  negligent  act ;  and  he  is  not  bound  to  assume  that 
such  an  act  will  be  continued. ^^ 

15  Damages,  permanent  and  temporary,  test,  measure  of 

For  an  injury  that  has  been  occasioned  by  a  structure  which 
is  of  a  permanent  character,  there  can  be  but  one  recovery,  which 
must  include  all  damages,  present  and  prospective.^  2 

A  person  is  liable  for  all  consequences  which  might  have  been 
foreseen  and  expected  to  result  from  his  conduct,  but  not  for 
those  which  he  could  not  have  foreseen  and  which  he  was  there- 
fore under  no  obligation  to  take  into  consideration. ^^ 

An  injury  is  not  permanent  within  the  rule  which  limits  but 
one  recovery  of  all  damages,  past,  present  and  prospective, 
where  the  continuance  and  operation  of  a  permanent  structure 
are  not  necessarily  injurious,  but  may  or  may  not  become  so.^^ 

In  an  action  for  permanent  injuries  to  real  estate,  the  correct 

9KeUy  V.   Garrett,   1   Gilm.   649,  12  Price  v.   Union  Drainage  Dis- 

653    (1844).  trict,  253  III.   114,    119    (1912). 

10  Providence- Washington  Ins.  Co.  i3  Nail    v.    Taylor,    247    111.    580 

V.  Western  Union  Tel.  Co.,  247  111.  584    (1910).                                           ' 

84,   89    (1910).  14  Jones  v.  Sanitary  District,  252 

iiRamey  v.  Baltimore  &  Ohio  S.  III.   591.   599    (1912). 
W.  R.  Co.,  235  111.  502,  506   (1908). 


CAUSES   OF   ACTIONS  13 

measure  of  damages  is  the  difference  in  the  cash  value  of  the 
land  before  the  same  was  damaged  and  its  fair  cash  value  after- 
wards :  in  an  action  for  temporary  damages,  the  proper  measure 
of  damages  is  the  actual  loss  sustained  during  the  continuance 
of  the  in  jury. 1^ 

SURVIVORSHIP 

16  Statutory  actions 

Statutory  actions  do  not  survive  at  common  law.^^ 

17  Test 

A  right  of  action  will  not  survive  if  it  is  so  entirely  personal 
that  the  party  in  whom  it  exists  cannot  by  contract  place  it 
beyond  his  control.  ^^ 

FORMS  OF  ACTIONS 

18  Enumeration  of  actions 

The  common  law  forms  of  ex  contractu  and  ex  delicto  actions 
are  in  force  in  Illinois.^s  The  principal  common  law  ex  con- 
tractu actions  are:  Assumpsit;  Debt;  Covenant;  Detinue;  and 
the  ex  delicto  actions  are,  Case  (Personal  Injuries);  Trover; 
Replevin;  Trespass,  {vi  et  armis  and  trespass  quare  caluswm 
f regit)  ;  Ejectment. 

With  slight  exception,  the  following  is  a  list  of  the  statutory 
and  other  actions  and  proceedings  now  in  use  :  Account ;  Admin- 
istration ;  Adoption ;  Agreed  and  Compromised  Case ;  Appeals- 
Intermediate ;  Application  for  Judgment  and  Order  of  Sale; 
Arbitration ;  Arrest  for  Debt  and  Release ;  Attachment ;  Attach- 
ment in  Aid;  Attachment  of  Water-craft;  Boundary  Lines; 
Caveat;  Certiorari;  City's  Incorporation,  Annexation  and 
Disconnection  of  Territory ;  Civil  Service ;  Condemnation ;  Con- 
fession of  Judgment;  Conservator  or  Committee;  Contempt; 
Dependent  Children;  Disbarment;  Distress  for  Rent;  Drainage 
Organization,  Assessment,  Dissolution  and  Taxation;  Elections, 

"Jones  V.  Sanitary  District,  252  is  Raisor  v.  Chicago  &  Alton  By. 

Ill    601-    Price  v.   Union  Drainage  Co.,  215  111.  47,  56   (1905);  Sec.  1, 

District,'  253  111.   119.  c  62,  Rev.  Stat.  1845  (1911  Hurd'a 

16  and  17  Selden  v.  Illinois  Trust  &  Stat.,  p.  519). 
Savings    Bank,    239    111.    67,    77-78 
(1909). 


14  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

Contest ;  Forcible  Detainer ;  Guardianship ;  Garnishment ; 
Habeas  Corpus;  Inheritance  Tax;  Liens'  Release;  Lost  Records; 
Lunacy;  Mandamus;  Motion  for  Judgment;  Ne  Exeat;  Prohibi- 
tion; Quo  Warranto;  Roads  and  Bridges;  Schools;  Scire  Facias; 
Special  Assessments;  Special  Taxation;  Taxation;  Township 
Organization  and  Taxation ;  and  Villages. 

ACTIONS 

19  Dog  license,  statutory  penalty 

An  ordinance  which  requires  a  dog  license  and  which  imposes 
a  penalty  for  the  failure  to  secure  it,  is  valid  and  enforcible 
as  a  police  regulation,  whether  the  license  is  designated  in  the 
ordinance  as  a  license,  a  tax  or  a  fee,  and  regardless  of  any  dis- 
position that  is  to  be  made  of  the  license  fund.^^ 

20  Drainage  benefits,  upper  and  lower  districts 

The  Act  of  1903  which  authorizes  a  recovery  by  a  lower  dis- 
trict for  benefits  derived  by  an  upper  district,  constitutes  class 
legislation  and  is  invalid,  because  it  fails  to  confer  a  similar 
right  upon  the  upper  district. ^^ 

21  Farm  crossings,  notice  and  service 

To  the railway  company : 

Notice  is  hereby  given  to  you  that  the  undersigned, , 

is  the  owner  of  the  following  described  real  estate:  beginning 
(Insert  legal  description). 

Notice  is  further  given  you  that  a  farm  crossing  has  become 

necessary  to  be  constructed  across  the  right  of  way  of  the 

railway  company,  so  that  the  undersigned, may  cross  the 

same  to  get  the  benefit  of  the railway  company ;  that 

the railway  company  is  a  traction  company  operating 

cars  over  said  road  by  electric  motive  power ;  that  the  line  runs 

from  the  city  of Illinois,  to  the  city  of 

,  in  the  state  of  Illinois ;  that  it  is  necessary  for 

isPaxton  V.  Fitzsimmons,  253  111.  194,  200-201    (1912);    Act  May  14, 

355,  357-60    (1912);   CI.   80,  sec.   1,  1903    (1911   Kurd's  Stat.,  p.   927); 

art.  5,  Cities  and  Villages  act  (1911  Drainage    Commissioners    v.    Union 

Kurd's  Stat.,  p.  267);   Sees.  1  and  Drainage     District,     211     111.     328 

10,  art.  9,  Constitution  1870.  (1904),  overruled;  People  v.  Crews, 

20  Bay    Island    Drainage    District  245  111.318   (1910),  overruled. 


T, 


Union  Drainage  District,.  255  III. 


CAUSES  OF  ACTIONS  15 

the  undersigned  to  frequently  go  to    and  to 

the  city  of ;  that  the  ears  run  each  way 

from   o  'clock  in  the  morning  until   o  'clock  in 

the  evening ;  that  the  undersigned 's  dwelling  house  is  on  his  said 
farm,  as  above  described,  and  north  of  the  line  of  said  railroad, 

the railway  company ;  that  the  track  is  between  the 

dwelling  house  on  the  undersigned's  farm  and  the  said  trac- 
tion line,  and  that  the  undersigned  has  no  way  of  getting  across 
the  said  railroad  to  the  said  traction  company's  line  so  as  to 
board  the  cars  and  take  advantage  of  the  same ;  that  it  has  become 
necessary  and  is  necessary  for  the  use  of  the  undersigned,  who 
is  the  proprietor  of  said  farm  above  described,  so  adjoining  the 
right  of  way,  as  aforesaid,  that  a  crossing  for  said  farm  be  put 
in  by  the  said  railroad  company,  so  that  the  undersigned,  as 
proprietor,  may  cross  over  to  the  interurban  and  board  the  cars 
of  said  interurban  company;  that  the  undersigned  suffers  great 
inconvenience  and  damage  in  the  operation  of  his  farm  by  being 
cut  off  from  the  use  of  said  mode  of  travel,  which  is,  in  certain 
seasons  of  the  year,  the  only  mode  of  travel  for  the  undersigned 
to  the  county  seat  and  to  the  markets  of  the  county  from  his 
said  farm ;  that  he  either  has  to  be  cut  off  from  egress  and  ingress 
to  and  from  this  mode  of  travel,  aforesaid,  by  the  traction  com- 
pany, or  become  a  trespasser  on  the  right  of  way  of  the  said 
railroad  company; 

Therefore,  notice  is  given  to  you  that  a  farm  crossing  has 
become  necessary  to  be  constructed  across  the  right  of  way  of 
the railway  company  for  the  use  of  the  under- 
signed, the  said ,  who  is  the  owner  and  proprietor 

of  said  lands  above  described  adjoining  such  railroad  on  the 
north. 

Notice  is  further  given  that  if  you  shall  refuse  to  build  the 
said  farm  crossing  across  your  right  of  way  in  accordance  with 
the  provisions  of  the  statute  in  that  case  made  and  provided, 
that  the  undersigned,  who  is  the  owner,  occupant  and  proprie- 
tor of  said  land  above  described,  will  build  said  farm  crossing 
across  the  right  of  way,  if  you  refuse  or  neglect  to  build  the  same 
within  thirty  days,  and  will  thereafter  bring  suit  against  you 
so  refusing  or  neglecting  to  build  said  farm  crossing,  to  recover 
double  the  value  thereof,  with  interest  at  one  per  cent  per  month 
as  damages  from  the  time  such  farm  crossing  shall  be  built, 


16  ANNOTATED  FORMS  OP  PLEADING  AND  PRACTICE 

together  with  costs,  as  provided  by  the  statute  in  such  eases 
made  and  provided. 

Witness  the  signature  of ,  the  owner  of  said  land,  this 

day  of ,19.. 

(Venue)  . 
,  being  first  duly  sworn  on  oath,  states  that  he  is 

one  of  the  deputies  to  the  sheriff  of  the  county  of afore- 
said, and  that  he  did  on  the  day  of , 

19 ,  serve  a  copy  of  the  attached  notice  on  the rail- 
way company  by  delivering  a  true  and  correct  copy  of  the  same 

to ,  station  agent  of  the  said  railway  company. 

,  Deputy  Sheriff. 

Subscribed,  etc.^i 

22  Goods  in  transit 

The  consignor,  the  consignee,  and  the  real  owner  of  goods  in 
transit  have  each  a  special  interest  in  the  goods  transported, 
giving  each  an  ex  contractu  or  an  ex  delicto  right  of  action  against 
the  common  carrier  for  breach  of  duty  as  carrier  or  warehouse- 


man. 


22 


The  common  carrier  and  the  wharfinger  are  bound  to  obey  the 
directions  of  the  consignor  of  goods  with  respect  to  their  desti- 
nation or  delivery,  and  they  are  liable  for  loss  that  occurs  from 
a  failure  to  obey  these  directions.^^ 

23  Illegal  contracts 

A  contract  entered  into  in  violation  of  an  express  statutory 
prohibition  cannot  be  made  the  basis  of  an  action  in  contract 
or  tort.24 

24  Lights  in  subway 

A  railroad  company  cannot  be  required  by  ordinance,  under 
the  general  police  power  of  a  municipality,  to  maintain  lights 
in  a  subway  created  by  the  elevation  of  its  tracks.^s 

21  Shea  V.  Cleveland,  C,  C.  &  St.  v.  Morlan,  78  HI.  162,  166   (1875). 

L.  Ry.  Co.,  250  111.  97,  101  (1911).  24  Ellison  v.  Adams  Express  Co., 

22Edgerton  v.   Chicago,   E.   I.   &  245  111.410,418  (1910). 

P    Rv.   Co.,   240  111.  311,   315,  317  25  Chicago    v.    Pennsylvania    Co., 

(1909).  252  111.  185,  192  (1911);  Sec.  1997 

23  Lewis  V.  Galena  &  C.  U.  R.  Co.,  Municipal   Code,   Chicago. 
40  Dl.  281,  289,  290  (1866) ;  HoweU 


CAUSES   OF   ACTIONS  17 

25  Municipality,  bad  faith  and  collusion,  practice 

The  proper  practice  for  a  tax-payer  to  present  the  question 
of  bad  faith  and  collusion  in  the  abandonment  of  a  case  by  or 
against  a  municipality,  is  to  apply  to  the  trial  court  for  leave  to 
intervene  and  to  be  heard;  and  if  this  be  denied,  and  it  be 
desired  to  have  the  judgment  reviewed  by  the  appellate  court, 
to  preserve  his  rights  by  proper  exceptions,  and  then  to  appeal 
or  to  sue  out  a  writ  of  error  from  the  appellate  or  the  supreme 
court.  26 

26  Penalties,  foreig-n 

The  penal  laws  of  other  states  are  unenforcible  beyond  the 
state  of  their  enactment.^"^ 

27  Surety 

In  the  absence  of  statute,  a  surety  has  the  right  to  require 
of  his  creditor  only  that  no  affirmative  act  shall  be  done  that 
would  operate  to  his  prejudice.^s 

28  Taxes,  voluntary  payment 

Money  voluntarily  paid  for  taxes  are  not  recoverable  on  the 
ground  that  the  act  under  which  the  tax  was  collected  is  uncon- 
stitutional.29 

29  Telegraph  poles,  rental 

A  municipality  has  authority  to  require  of  telegraph  com- 
panies a  reasonable  compensation  for  the  exclusive  use  of  streets 
and  alleys  for  the  erection  and  maintenance  of  poles.  This  does 
not  conflict  with  the  acts  of  Congress;  and  the  compensation 
is  not  a  license  nor  a  tax,  but  it  is  a  charge  in  the  nature  of  a 
rental.^*^ 

26  People  V  Lower,  254  111.  306,  so  Springjfielfl  v.  Postal  Tel.  C. 
309   (1912).                                                    Co.,  253  111.   346,   353,  354   (1912); 

27  Eaisor  v.  Chicago  &  Alton  Ey.  Post  Roads  act  of  Congress  of  1866, 
Co.,  215  111.  51.  amended  in  1884;  Sec.  4,  c.  134  R.  S. 

28  People  V.  Whittemore,  253  111.       (1911  Kurd's  Stat,,  p.  2309). 
378,  382   (1912). 

29  People  V.  Whittemore,  253  111. 
385. 


18  ANNOTATED   FORMS   OF   PLEADING   AND    PRACTICE 

30  Transportation,  refusal 

An  action  on  the  case  is  maintainable  against  the  common  car- 
rier for  a  failure  to  carry  goods  that  have  been  received.^i 
But,  the  refusal  and  neglect  of  a  railroad  company  to  furnish, 
start  or  run  cars  for  the  transportation  of  goods  offered  to  it, 
does  not  give  the  owner  of  the  goods  a  right  of  action  for  treble 
damages  under  sections  22  and  23  of  the  Fencing  and  Operating 
Eailroad  act  of  1874.32 

31  Phelps  V.  Illinois  C.  R.  Co.,  94  Ry.  Co.  v.  People,  227  111.  270 
111.  548,  357   (1880).  (1907). 

32  Atchinson,  Topeka  &  Santa  Fe 


CHAPTER     III 


ELECTION  OF  REMEDIES 

IN  GENERAL  APPLICATION  TO  PERSONS 


31  The  doctrine 

32  Application 

33  Effect 

34  Abandonment    and    discontinu- 

ance 

APPLICATION  TO  SPECIFIC 
INSTANCES 

35  Arrest  for  debt 

36  Bail  bond 

37  Obligations,  joint  and  several 

38  Sales,  refusal  to  accept  goods; 

re-sale 

39  Taxes,  personal  representatives 

40  Tax  titles 

41  Wrongful  attachment 


42  Heirs 

43  Joint  wrongdoers 

44  Sheriffs  and  constables 

APPLICATION   TO    ACTIONS 

45  Appeal  or  certiorari 

46  Assumpsit  or  trespass 

47  Assumpsit,  replevin  or  trover 

48  Case  or  trespass 

49  Debt  and  covenant 

50  Interpleader  or  replevin 

51  Replevin  or  trespass 

52  Replevin  or  trover 

53  Special  assessments 


IN  GENERAL 


31  The  doctrine 


A  party  who,  by  law  or  contract,  may  enforce  his  rights  through 
different  remedies,  must  choose  between  them.  Upon  making 
the  choice,  he  is  bound  by  it ;  as  an  election  of  one  of  the  reme- 
dies, is  a  waiver  of  the  others.^ 

32  Application 

The  rule  that  a  plaintiff  is  bound  by  his  election  has  no  appli- 
cation where  he  has  no  choice  of  remedies ;  ^  nor  where  the  action 
is  misconceived  or  mistaken.^ 


1  Piatt  v.  Aetna  Ins.  Co.,  153  111. 
113,  120  (1894);  Christy  v.  Farlin, 
49  Mich.   319,  320    (1882). 

2  Carbary  v.  Detroit  United  Ry., 
157  Mich.  683,  685  (1909);  Glover 
V.  Radford,  120  Mich.  542,  544 
(1899). 


3  McLaughlin  v.  Austin,  104 
Mich.  489,  491  (1895);  Chaddoclt 
V.  Tabor,  115  Mich.  27,  33  (1897); 
Bryant  v.  Kenyon,  123  Mich.  151. 
155  (1900);  Chicago  Terminal 
Transfer  R.  Co.  v.  Winslow,  216  111. 
166,  172  (1905). 


19 


20  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

33  Effect 

The  election  of  a  remedy  is  considered  as  of  the  date  the 
action  is  commenced,  irrespective  of  subsequent  dismissal  of 
the  suit.4 

34  Abandonment  and  discontinuance 

The  discontinuance  or  the  abandonment  of  an  independent  and 
collateral  remedy,  before  judgment,  is  no  bar  to  the  commence- 
ment of  a  new  like  remedy,  if  the  discontinued  and  the  new 
remedy  are  not  inconsistent  or  irreconcilable.^ 

Replevin  and  trespass  are  not  opposite  and  irreconcilable 
claims  of  right.*^ 

APPLICATION  TO  SPECIFIC  INSTANCES 

35  Arrest  for  debt 

Upon  the  satisfaction  of  a  joint  judgment,  a  joint  debtor 
under  arrest  for  debt  may  either  move  for  the  recall  of  the  exe- 
cution and  for  his  discharge,  or  he  may  obtain  his  release  upon 
habeas  corpus.'^ 

36  Bail  bond 

For  a  failure  to  put  in  special  bail  under  a  bail  bond,  the 
parties  for  whose  benefit  the  bond  was  executed  may  proceed 
against  the  officer  to  whom  it  was  given,  or  they  may  take  an 
assignment  of  it  and  bring  an  action  against  the  sureties.^ 

37  Obligations,  joint  and  several 

On  a  joint  and  several  obligation,  a  party  is  at  liberty  to  pro- 
ceed against  the  obligors  jointly,  or  severally ;  but  once  the  elec- 
tion has  been  made,  the  action  will  be  governed  by  the  rules 
that  are  applicable  to  the  particular  kind  of  action  that  was  com- 
menced. That  is  to  say,  if  the  action  is  joint,  the  rule  of  recov- 
ery should  be  as  in  an  action  upon  a  joint  contract  alone.^ 

•t  Thomas  v.  Watt,  104  Mich.  201,  «  Wilcox  v.  Ismon,  34  Mich.  268, 

i'0.5  ri895).  272   (1876). 

5  and «  stier    V.    Harms,    154    111.  »  Gould  v.  Sternburg,  69  111.  531, 

,474,  479,  481   (1895).  532   (1873). 

7  Eisen  v.  Zimmer,  254  111.  43,  48 
(1912);  Sec.  22,  c.  65,  Kev.  Stat. 
(111.). 


ELECTION    OF    REMEDIES  21 

38  Sales,  refusal  to  accept  goods ;  re-salo 

Upon  the  vendee's  refusal  to  accept  goods  purchased,  the  ven- 
dor has  three  remedies :  first,  to  store  the  goods  for  the  vendee, 
to  give  him  notice  thereof,  and  to  recover  the  full  contract  price ; 
second,  to  keep  the  goods  and  to  recover  the  excess  of  the  contract 
price  over  and  above  the  market  price  of  the  goods  at  the  time 
and  place  of  the  delivery;  and  third,  to  re-sell  the  goods  at  a 
fair  price  or  to  the  best  advantage,  and  to  recover  from  the  ven- 
dee the  loss  if  the  goods  fail  to  bring  the  contract  price. ^^ 

In  the  latter  case,  it  is  not  necessary  that  the  re-sale  shall  be 
at  the  original  place  of  the  delivery,  but  it  may  be  made  wher- 
ever the  best  possible  price  can  be  obtained  for  the  goods,  not- 
withstanding the  existence  of  a  contract  specifying  the  place  of 
delivery  and  it  is  for  goods  to  be  produced  or  manufactured.^^ 

39  Taxes,  personal  representatives 

The  people  may  enforce  the  payment  of  taxes  due  from  a 
personal  representative  in  the  probate  or  county  court,  or  by 
an  action  of  debt.^^ 

40  Tax  titles 

The  owner  of  unoccupied  premises  which  are  claimed  under 
an  invalid  tax  title  may  either  file  a  bill  in  chancery  to  remove 
the  cloud,  or  he  may  bring  ejectment.  ^^ 

41  Wrongful  attachment 

A  defendant  in  attachment,  who  has  been  wrongfully  sued, 
may  defend  the  attachment,  he  may  sue  on  the  attachment 
bond,^^  or  he  may  bring  an  action  for  malicious  prosecution 


15 


APPLICATION  TO  PERSONS 

42  Heirs,  or  devisees 

Under  Illinois  statute,  a  creditor  may  sue  a  personal  repre- 
sentative and  the  heirs  jointly,  or  he  may  sue   the   personal 

10  Bagley  v.  Findlay,  82  111.  524,  is  Phillips  v.  Glos,  255  111.  58,  60 
525  (1876);  Ames  v.  Moir,  130  111.  (1912);  See.  7,  Ejectment  act  (111.). 
582,  591  (1889) ;  Osgood  v.  SJiinner,  n  Thomas  v.  Hinsdale,  78  111.  259, 
211   111.   229,  240    (1904).  260   (1875). 

11  White  Walnut  Coal  Co.  v.  Cres-  is  Spaids  v.  Barrett,  57  111.  289, 
cent  Coal  &  Mining  Co.,  254  111.  368,  293   (1870). 

374-377   (1912). 

12  People    V.    Hibernian    Banking 
Ass'n.,  245  111.  522,  529  (1910). 


22  ANNOTATED  FORMS  OF   PLEADING  AND   PRACTICE 

representative  and  the  devisees  jointly,  or  he  may  sue  the  per- 
sonal representative,  the  heirs  and  the  devisees  jointly.  In  each 
case  the  personal  representative  must  be  joined  in  the  action, 
unless  judgment  has  been  previously  obtained  against  the 
personal  representative  and  there  are  no  assets  in  his  hands  for 
its  payment,  or  the  estate  is  not  administered  within  one  year 
from  the  death  of  the  testator  or  intestate.^*'' 

43  Joint  wrongdoers 

A  person  who  is  injured  by  the  joint  wrong  of  several  persons 
may  sue  all  in  one  action,  or  he  may  sue  each  in  a  separate  action 
and  recover  several  judgments,  of  which  he  can  have  but  one 
satisfaction.^'^ 

All  who  contribute  to  a  tort  either  by  will  or  act,  even  though 
in  an  inferior  degree,  are  liable  severally  for  the  entire  damages 
to  the  person  injured,  whether  they  are  personally  present  or 
absent  at  the  time  of  the  injury.  ^^ 

44  Sheriff  and  constables 

Damages  which  result  from  the  failure  of  a  sheriff  or  a  con- 
stable to  take  a  sufficient  return  bond  in  replevin  may  be 
recovered  in  an  action  on  the  case,  or  in  an  action  of  debt  upon 
the  official  bond.^^ 

APPLICATION  TO  ACTIONS 

45  Appeal  or  certiorari 

If  a  court  proceeds  irregularly,  the  remedy  is  by  appeal,  and 
not  by  certiorarL^^ 

46  Assumpsit  or  trespass 

At  common  law,  the  owner  of  land  which  is  occupied  by  a 
trespasser,  and  the  owner  of  personal  property  which  is  wrong- 
fully taken  and  which  has  not  been  sold,  cannot  waive  the 
trespass  and  sue  in  assumpsit.    But,  after  the  personal  property 

leEyan    v.    Jones,    15    111.    1,    4  i9  People    v.     Core,     85    111.    248 

(1853);  Sees.  11,  14  and  15,  e.  59,  (1877);  Sec.  12,  c.  119,  1909  Kurd's 

Eevised    Statute    (111.).  Stat.,  p.  1820. 

17  Severin  v.  Eddy,  52  111.  189,  20  Schlink  v.  Maxton,  153  111.  447, 
191   (1869).  454   (1894). 

18  Kankakee   &   Seneca  E.   Co.  v. 
Horan,  131  111.  288,  300  (1890). 


ELECTION    OF   REMEDIES  23 

has  been  converted  into  money  the  owner  of  the  property  may 
waive  the  trespass  and  sue  in  assumpsit.^^ 

Under  Michigan  statute,  a  trespass  on  land  may  be  waived  and 
assumpsit  may  be  brought  for  the  damages  sustained  by  the  tres- 
pass.22  If  assumpsit  is  brought,  the  action  must  proceed  as 
for  a  trespass  under  the  statute  and  not  upon  contract. 

47  Assumpsit,  replevin  or  trover 

A  party  who  elects  to  sue  in  assumpsit  cannot  afterwards 
sue  in  replevin  or  trover  for  the  same  subject  matter.^s 

48  Case  or  trespass 

The  Illinois  statute  merely  abolishes  the  technical  distinction 
between  the  two  forms  of  action  of  case  and  trespass;  it  does 
not  affect  or  change  the  substantial  common  law  rights  and 
liabilities  of  the  parties.^^ 

49  Debt  and  covenant 

Debt  and  covenant  are  concurrent  remedies  for  the  recovery 
of  demands  arising  from  contracts  under  seal.-^ 

50  Interpleader  or  replevin 

The  owner  of  personal  property  upon  which  an  attachment 
against  another  person  has  been  levied,  may  either  replevin  the 
property  or  he  may  claim  it  by  interpleader  in  the  attachment 
proceedings.26 

51  Replevin  or  trespass 

Property  upon  which  a  wrongful  distress  warrant  has  been 
levied  may  be  either  replevined,  or  the  owner  of  the  property 
may  recover  damages  for  its  value  in  an  action  of  trespass.^" 

21  Lockwood  V.  Thunder  Bay  23  Cooper  v.  Smith,  109  Mich.  458, 
Elver  Boom  Co.,  42  Mich.  536,  539  460  (1896);  Thomas  v.  Watt,  supra. 
et  seq.  (1880);  Watson  v.  Stever,  24  Blaloek  v.  Eandall,  76  111.  224, 
25   Mich.   386,  387    (1872);   May  v.  228,  229    (1875). 

Disconto   Gesellsehaft,   211   111.  310,  25  Stewart    v.    Sprague,    71    Mich. 

315    (1904);    Toledo,  W.  &  W.   Ey.       50,  59    (1888). 

Co.  V.  Chew,  67  111.  378,  383  (1873) ;  26  Juilliard  &  Co.  v.  May,  130  111. 

Ward  V.  Bull,   1  Fla.  271,  278,  280       87    (1889). 

(1847).  27  Stier  v.  Harms,  supra. 

22  Lockwood  V.  Thunder  Bay 
Eiver  Boom  Co.,  supra;  Sec. 
(11207),  C.  L.  1897   (Mich.). 


24  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

52  Replevin  or  trover 

Trover  and  not  replevin  should  be  brought  where  the  prop- 
erty sought  to  be  recovered  is  incapable  of  identification.^^ 

53  Special  assessments. 

The  failure  to  bring  injunction,  to  commence  mandamus,  or 
to  file  objections  to  the  application  for  judgment  and  sale  to 
enforce  payment  of  a  special  assessment  will  not  preclude  a 
party  from  bringing  a  personal  action  against  the  members  of 
the  board  of  local  improvements  for  the  recovery  of  special 
damages  arising  from  the  construction  of  a  local  improvement 
under  a  conspiracy  between  them  and  the  contractor. 29 

28  German      National      Bank      v.  29  Gage  v.  Springer,  211  111.  200, 

Meadowcroft,     95     111.      124,      129       208  (1904). 
(1880). 


CHAPTER   IV 

STATUTE  OF  LIMITATIONS 


PRINCIPLES 

§§ 

54  Controlling  elements 

55  Form  of  action 

56  Cause  of  action,  accrual 

57  Cause    of    action,    fraudulent 

concealment 

58  Commencement  of  running  of 

statute 

59  Commencement   of   suit,   gen- 

erally 

60  Commencement  of  suit,  sum- 

mons and  declaration 

61  Commencement  of  suit,  what 

not 

PARTIES 

62  Aliens 

63  Minors  and  adults 

64  Nonresidents,    persons    claim- 

ing under 

65  Sheriffs 

66  Sureties 

67  Trustees  in  bankruptcy 

68  State  and  municipalities 

69  Dissolved  corporations 

SPECIFIC  CAUSES 

70  Abduction 

71  Assault  and  battery 

72  Animals  at  large 

73  Bonds,  administrator's 

74  Bonds,  penal 

75  False  imprisonment 

76  Fraud  and  deceit 

77  Gambling   options 

78  Insurance  policy 

79  Judgments,  Illinois 

80  Judgments,  Michigan 

81  Libel 

82  Malicious  prosecution 


83  Malpractice 

84  Nonsuit,  new  actions 

85  Penalties,    statutory,    Illinois 

86  Penalties,     statutory,     Missis- 

sippi 

87  Personal    injuries,    generally, 

Illinois 

88  Personal  injuries,  municipali- 

ties 

89  Personal   injuries,   railroads 

90  Rent 

91  Replevin  bond  insuflBcient 

92  Sale  of  real  estate 

93  Seduction 

94  Slander 

95  Stockholder's  liability 

96  Suggestion  of  claim  for  mesne 

profits 

97  Taxes,  money   paid  as 

98  Waste 

ACTIONS    AND    PROCEEDINGS 

99  Assumpsit,   account   current 

100  Assumpsit,  contract 

101  Attachment    of   water-craft 

102  Case,  continuing  injury 

103  Case,  damages 

104  Case,  Illinois 

105  Case,  Michigan 

106  Certiorari,  generally 

107  Certiorari,    justice's    proceed- 

ing 

108  Claims  against  estates,  admin- 

istrators 

109  Claims    against    estates,    con- 

tingent 

110  Claims  against  estates,  Illinois 

111  Claims  against  estates,  Michi- 

gan 


25 


26 


ANNOTATED  FORMS  OP  PLEADING   AND  PRACTICE 


112  Coram  nobis 

113  Covenant 

114  Debt,  Illinois 

115  Debt,  Michigan 

116  Disbarment 

117  Distress  for  rent 

118  Ejectment,  Florida 

119  Ejectment,  Illinois 

120  Ejectment,  Michigan 

121  Election  contest,  Illinois 

122  Election  contest,  Michigan 

123  Mandamus 

124  Quo  Warranto 

125  Replevin 

126  Trespass,  generally 


§§ 

127  Trespass,  Illinois 

128  Trespass,  Michigan 

129  Trover 

130  Writ  of  error,  Illinois 

131  Writ  of  error,  Michigan 

SUSPENSION  OF  STATUTE 

132  Absence 

133  Death 

134  Disability,  generally 

135  Disability,  Illinois 

136  Disability,  Michigan 

137  Legal  proceedings 

REVIVAL 

138  Torts,  new  promise 


PEINCIPLES 

54  Controlling  elements 

The  limitation  of  an  action  is  controlled  by  the  law  of  the 
forum,  by  the  cause  of  the  action,  by  the  person,  corporation  or 
municipality  who  sues  or  who  is  being  sued,  and  by  the  form  of 
the  action. 

55  Form  of  action 

In  states  where  the  common  law  forms  of  action  prevail,  and 
in  absence  of  statutory  provision  to  the  contrary,  the  form  of 
the  action,  and  not  the  cause  of  action,  determines  the  bar  of 
the  statute.  1 

Some  of  the  provisions  of  the  Michigan  statute  limit  the  action 
according  to  its  form ;  other  provisions,  bar  the  action  regardless 
of  the  form  of  action  chosen. 2 

56  Cause  of  action,  accrual 

A  cause  of  action  accrues  when  facts  exist  which  authorize  one 
party  to  maintain  an  action  against  another  regardless  of  the 
residence  of  either  party,^  unless  the  statute  expressly  postpones 


1  Bates  v.  Bates  Machine  Co.,  230 
111.  619,  622  (1907);  Christy  v. 
Farlin,  49  Mich.  319  (1882). 

2  Christy  v.  Farlin,  supra ;  Avery 
V.  Miller,  81  Mich.  85,  88  (1895); 
(9728),  C.  L.  1897  (Mich.) ;  Snyder 


v.  Hitchcock,  94  Mich.  313,  315 
(1892);  (9751),  C.  L.  1897 
(Mich.). 

3  Davis  V.  Munie,  235  III.  620,  622 
(1908). 


STATUTE   OF   LIMITATIONS  27 

its  operation  on  account  of  the  absence  from  the  state  of  one 
of  the  parties. 

57  Cause  of  action,  fraudulent  concealment 

In  Illinois,  the  fraudulent  concealment  of  the  cause  of  action 
entitles  the  party  upon  whom  the  fraud  has  been  practiced  to 
sue  within  five  years  from  the  discovery  of  his  rights  or  of  the 
perpetration  of  the  fraud.  To  entitle  a  party  to  bring  an  action 
within  five  years  from  the  discovery  of  a  fraudulent  conceal- 
ment of  a  cause  of  action,  something  of  an  affirmative  character 
designed  to  prevent,  and  which  does  prevent,  a  discovery  of  the 
cause  of  action  must  exist,  where  the  original  basis  of  the  action 
is  not  fraud.  Mere  silence  of  a  person  who  is  liable  to  an  action 
is  insufficient  under  the  statute.^ 

58  Commencement  of  running-  of  statute 

The  statute  of  limitation  begins  to  run  from  the  time  of  the 
injury  or  iroin  the  time  of  the  accrual  of  the  cause  of  action.^ 

59  Commencement  of  suit,  generally 

The  bringing  of  a  suit  terminates  the  running  of  the  statute 
of  limitations,  regardless  of  when  a  recovery  of  judgment  is  had.^ 

60  Commencement  of  suit,  summons  and  declaration 

The  issuance  of  the  first  summons,  or  other  process,  to  bring 
the  defendant  into  court,  is  the  commencement  of  a  suit  for  the 
purpose  of  arresting  the  running  of  the  statute  of  limitations, 
if  the  first  declaration  filed  states  a  good  cause  of  action, 
although  defectively.  If  the  declaration  states  no  cause 
of  action  and  an  amended  sufficient  declaration  is  filed,  or  if 
a  new  count  is  filed  which  brings  forward  a  new  cause  of  action, 
the  date  of  the  filing  of  the  second  declaration  or  new  count  is 
the  commencement  of  the  suit  for  the  purpose  of  preventing  the 
running  of  the  statute.'^ 

4  Fortune  v.  English,  226  111.  262.  165  111.  18.5,  190  (1897);  Milwaukee 
267  (1907);  Sec.  22,  c.  83,  Kurd's  M.  Ins.  Co.  v.  Schallman,  188  111. 
Stat.  1909,  p.  1447.  213,   220    (1900);    Fish   v.   Farwell, 

5  Jones  V.  Sanitary  District,  252  160  111.  236,  247  (1896);  Schroeder 
m.  598.                         ■  V.  Merchants  &  M.  Ins.  Co.,  104  111. 

6  Converse  v.  Dunn.  166  111.  25,  71,  79  (1882);  Chicago  &  North- 
29  (1897).  western  Ry.  Co.  v.  Jenkins,  103  IlL 

TEylenfeldt  v.   Illiuois  Steel  Co.,       588,  594    (1882). 


28  ANNOTATED  FORMS  OP   PLEADING   AND   PRACTICE 

In  actions  commenced  by  declaration,  the  suit  is  not  begun, 
within  the  meaning  of  the  Michigan  statute  of  limitations,  until 
there  is  personal  service  upon  the  defendant  of  a  copy  of  the 
declaration  and  rule  to  plead.* 

61  Commencement  of  suit,  what  not 

The  substitution  of  an  Assignee  or  trustee  in  bankruptcy  as 
plaintiff,  without  changing  the  cause  of  action  that  is  then  pend- 
ing, is  not  the  bringing  of  a  new  suit.® 

PAKTIES 

62  Aliens 

The  statute  of  limitations  in  personal  actions  does  not  run 
against  nonresident  aliens,  nor  against  subjects  or  citizens  of  a 
country  which  is  at  war  with  the  United  States.  ^"^ 

63  Minors  and  adults 

A  joint  action  in  favor  of  an  adult  and  a  minor  is  not  barred 
until  two  years  after  the  minor  has  attained  his  majority.  ^^ 

64  Nonresidents,  persons  claiming  under 

In  personal  actions,  the  statute  of  limitations  begins  to  run 
against  a  resident  immediately  after  he  acquires  title  to  a  cause 
of  action  from  a  nonresident,  by  death  or  otherwise.^2 

65  Sheriffs 

Actions  against  sheriffs  for  misconduct  or  negligence  of  their 
deputies  must  be  commenced  within  three  years  of  the  accrual 
of  the  cause  of  action.^^ 

66  Sureties 

The  bar  of  a  cause  of  action  against  the  principal  and  one 
surety  does  not  discharge  or  release  another  surety.^* 

8  Detroit  Free  Press  Co.  v.  Bagg,  12  Wolf  v.  District  Grand  Lodge. 
78  Mich.  650,  654   (1889).                         102  Mich.  23,  28   (1894). 

9  Chicago  &  Northwestern  Ey.  Co.  13  (9730),  C.  L.  1897  (Mich.) 

V.  Jenkins,  103  111.  594,  598.  14  People  v.  Whittemore    253  Dl. 

10  (9735),  C.  L.  1897    (Mich.).  378,  385   (1912). 

11  Beresh  v.  Knights  of  Honor, 
255  111.  122,  124  (1912);  Sec.  21, 
c.  83,  Limitation  act   (111.). 


STATUTE  OF   LIMITATIONS  29 

67  Trustees  in  bankruptcy 

Suits  by  or  against  trustees  in  bankruptcy  cannot  be  brought 
after  two  years  of  the  closing  of  the  estate. ^^  Writs  of  error 
are  suits  within  the  foregoing  rule.^^ 

68  State  and  municipalities 

Statutes  of  limitations  do  not  run  against  the  state  or  minor 
municipalities  created  by  the  state  as  local  governmental  agen- 
cies, such  as  counties,  cities  and  towns,  in  respect  to  public  rights, 
unless  the  state  or  the  municipality,  is  included  within  the  terms 
of  the  statute.  This  rule  does  not  extend  to  a  state  or  a  munici- 
pality which  acts  in  a  matter  involving  private  rights.^^ 

The  statute  of  limitations  does  not  run  against  the  state  so 
long  as  it  holds  title  for  the  use  of  the  public^^  An  action  of 
debt  by  the  people  to  enforce  payment  of  taxes  is  not  subject  to 
the  statute  of  limitations.^^  Suits  for  the  recovery  of  lands  on 
behalf  of  the  state  may  be  commenced  within  twenty  years  after 
the  cause  of  action  has  accrued.^'^ 

A  municipality  is  considered  to  act  in  its  private  capacity 
when  it  seeks  to  enforce  rights  in  which  the  public  in  general 
have  no  interest  in  common  with  the  people  of  tlie  municipality. 
Thus,  the  trustees  of  schools  act  in  a  private  capacity  with 
respect  to  property  hold  by  thorn  for  the  use  of  a  particular 
school  district.2i  So,  a  municipality's  riglit  of  action  for  dam- 
ages done  to  a  bridge  is  based  upon  private  and  not  public 
rights.22 

69  Dissolved  corporations 

A  corporation,  in  Illinois,  may  sue  within  two  years  after 
dissolution;  it  may  bo  sued  at  any  time  during  the  general 
statute  of  limitations.2  3 

15  2  Supplt.  U.  S.  Rev.  Stat.,  p.  "  People  v.  Hibernian  Banking 
849    sec.   11,  cl.   (d).  Ass'n..  245  111.  522,  529. 

16  International  Bank  v.  Jenkins,  20  (9724),  C.  L.   1897   (Mich.). 
107  111.  291  (1883).                                        21  Brown      v.      School      Trustees, 

17  Brown  v.   School  Trustees.  224  svpra. 

HI      184,    187     (1906);     People    v.  22  Chicago  v.   Dunham   Towing  & 

Eo'ck     Island,     215     111.     488,     493  Wrecking  Co.,  246  111.  31. 

(1905);   Whittemore  v.  People,  227  23  Singer   &   Talcott   Stone  Co.  v. 

HI     453     474     (1907);    Chicago    v.  Hutchinson,     176     111.     48,     51,     52 

Dunham    Towing    Sc    Wrecking   Co.,  (1898);    Sees.    10-12,    c.    32,    Eev. 

246  111.  29,  30  (1910).  Stat.   (111.). 

18  Black  V.   Chicago,   B.   &   Q.   R. 
Co.,  237  HI.  500   (1909). 


30  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

SPECIFIC  CAUSES 

70  Abduction 

An  action  for  abduction  must  be  commenced  within  two  years 
next  after  the  accruing  of  the  action. 24 

71  Assault  and  battery 

Actions  for  assault  and  battery  are  barred  within  two  years 
from  the  time  the  action  had  accrued.^^ 

72  Animals  at  large 

An  action  on  the  case  for  damages  caused  by  permitting  dis- 
eased sheep  or  domestic  animals  to  run  at  large  is  barred 
within  five  years.^^ 

73  Bonds,  administrator's 

The  statute  of  limitations  begins  to  run  against  distributees 
of  an  estate  upon  an  administrator's  bond  from  the  date  the  ad- 
ministrator fails  to  pay  the  money  to  the  distributees  in  accord- 
ance with  the  final  order  or  judgment  of  the  court,  after  demand 
has  been  duly  made  upon  liim.^^ 

In  Michigan,  an  administrator  who  fails  to  pay  debts  against 
an  estate  in  accordance  with  an  order  of  court  must  be  sued 
within  ten  years  from  the  date  limited  by  the  order  to  pay  the 
debts,  whether  the  debts  are  outlawed  or  not,  if  the  action  is 
debt.28 

74  Bonds,  penal 

An  action  on  a  penal  bond  may  be  brought  within  the  time 
limited  by  the  provision  of  the  bond  for  the  bringing  of  the 
action,  although  all  of  the  damages  have  not  accrued  at  the  time 
of  the  commencement  of  the  action. 29 

24  Sec.  14,  c.  83,  Hurd's  Stat.  27  Frank  v.  People,  147  111.  105, 
1909.  112,  113   (1893). 

25  1909     Acts,     p.     422      (Mich.),  28  Avery  v.  Miller,  81  Mich.  88. 
(9729),  C.  L.  1897.  29  Lesher  v.  United  States  Fidel- 

26  Mount  V.  Hunter,  58  111.  246,  ity  &  Guaranty  Co.,  239  111.  502, 
248  (1871);  Sec.  258,  c.  38,  Hurd's  514   (1909). 

Stat.   1909,  p.   803;    Sec.    15,   c.    83, 
Hurd's  Stat.  1909,  p.  1446, 


STATUTE   OF   LIMITATIONS  31 

75  False  imprisonment 

In  Illinois  and  in  Michigan  an  action  for  false  imprisonment 
is  barred  after  two  years  from  the  accruing  of  the  action.^*^ 

76  Fraud  and  deceit 

An  action  on  the  case  for  fraud  and  deceit  must  be  brought 
in  Illinois  within  five  years  and  in  Michigan  within  six  years 
next  after  the  cause  of  action  had  accrued.^^ 

77  Gambling-  options 

An  action  to  recover  back  moneys  paid  upon  options  to  buy  or 
sell  grain  must  be  brought  within  six  months  after  payment.^  2 

78  Insurance  policy 

A  stipulation  not  sue  after  a  certain  period  contained  in  an 
insurance  policy  is  binding  upon  the  insured,  and  no  action  can 
be  brought  after  the  prescribed  period,  unless  prevented  by  the 
insurer's  fraud,  or  the  holding  out  of  reasonable  hopes  of  an 
adjustment.23 

An  action  upon  a  fire  insurance  policy  must  be  brought  within 
twelve  months  from  the  end  of  the  sixty  days,  and  not  from  the 
fire,  under  a  provision  in  the  policy  limiting  the  commencement 
of  an  action  thereunder  to  twelve  months  "next  after  the  fire" 
and  another  provision  forbidding  the  commencement  of  suit  for 
sixty  days.2^ 

79  Judgments,  Illinois 

Scire  facias  or  debt  may  be  brought  to  revive  a  dorment  domes- 
tic judgment  within  twenty  years  after  the  date  of  the  judgment, 
and  not  afterwards.^^  A  claim  or  action  founded  upon  a  foreign 
judgment  must  be  commenced  within  five  years  next  after  the 

so  Sec     14,    c.    83,    Hurd  's    Stat.  33  Peoria  Marine  &  Fire  Ins.  Co. 

1909;  1909  Acts,  p.  422  (Mich.).  v.  Whitehill,  25  111.  466   (1861). 

31  Bates    V.    Bates    Machine    Co.,  34  Hogl  v.  Aachen  Ins.  Co.,  65  W. 

230    111.    621;     Kruefjer    v.    Grand  Va.  437.  438    (1909). 

Rapids  &  I.  K.  Co.,  51  Mich.  142,  144  35  ^\Tiite    v.    Horn,    224    111.    238, 

(1883)  244     (1906);     Ambler    v.    Whipple, 

32Bartlett    v.     Slusher,     215     111.  139   111.    311.    321    (1891);    Limita- 

348     352    (1905);    Sec.    132,   c.    38,  tion    act     (Kurd's    Stat.    1909,    p. 

Hurd's  Stat.  1909,  p.  778.  1447,  par.  26). 


32  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

cause  of  action  had  accrued,  irrespective  of  where  the  action  ac- 
crued, or  where  the  parties  reside.^^ 

80  Judgments,  Michig-an 

All  actions  upon  judgments,  except  judgments  rendered  by 
courts  of  record,  must  be  commenced  within  six  years.^^  Actions 
upon  domestic  or  foreign  judgments,  or  decrees  rendered  by  a 
court  of  record,  must  be  commenced  within  ten  years  of  their 
entry,  regardless  of  the  form  of  the  action  chosen.^s 

81  Libel 

Actions  for  libel  must  be  begun  within  one  year  after  the  accru- 
ing of  the  cause  of  action  in  Illinois  and  in  Michigan.^^ 

82  Malicious  prosecution 

An  action  for  malicious  prosecution  is  barred  in  two  years. *^ 
A  cause  of  action  for  malicious  prosecution  does  not  arise  until 
the  expiration  of  two  years  from  the  making  of  the  final  order  of 
reversal  in  reversed  and  remanded  cases."*  ^ 

83  Malpractice 

Actions  for  malpractice  by  physicians,  surgeons  and  dentists 
must  be  brought  within  two  years  next  after  the  action  had  ac- 
crued.^2 

84  Nonsuits,  new  action 

In  Illinois,  a  new  action  must  be  commenced  within  one  year 
of  an  involuntary  nonsuit.^ ^  This  rule  has  no  application  to  non- 
suits which  are  voluntary.^* 

36  Davis  V.  Munie,  235  111.  620;  4i  McElroy  v.  Catholic  Press  Co., 
Ambler    v.    Whipple,    139    111.    321;       254  111.  290,  292   (1912). 

Sec.     15,    Limitation    act     (Kurd's  42  1909  Acts,  p.  422    (Mich.). 

Stat.   1909,  p.   1446).  43  Hinchliff   v.    Eudnick,    212    111. 

37  (9728),  C.  L.  1897  (Mich.).  569,  574  (1904);  Sec.  25  Limitation 

38  Snyder  v.   Hitchcock,  94  Mich.  act. 

315;    (9751),  C.  L.  1897  (Mich.).  44  Koch  v.  Sheppard,  223  111.  172, 

39  Sec.    13,    e.    83,    Kurd's    Stat.       174  (1906). 
1909;   1909  Acts,  p.  422   (Mich.). 

40  Sec.    14,    c.    83,    Kurd's    Stat. 
1909. 


STATUTE   OF   LIMITATIONS  33 

85  Penalty,  statutory,  Illinois 

An  action  for  a  statutory  penalty  must  be  commenced  within 
two  years  next  after  the  accruing  of  the  cause  of  action.^^ 

86  Penalties,  statutory,  Mississippi 

An  individual 's  action  for  a  penalty  or  a  forfeiture  given  by  a 
penal  statute  must  be  brought  within  one  year  next  after  the 
offense  was  committed.'*^  An  action  for  demurrage,  or  for  delay 
in  transportation  of  goods,  based  upon  the  Railroad  Commission 
Rules  is  in  the  nature  of  compensation  and  it  is  not  a  penalty 
within  the  meaning  of  section  3101  of  the  Code  of  1906.*'^ 

87  Personal  injuries,  g^enerally,  Illinois 

Excluding  municipalities,  actions  for  personal  injuries  which 
do  not  result  in  death  must  be  commenced  within  two  years  next 
after  the  accruing  of  the  cause  of  action. ^^  Suits  for  the  wrong- 
ful death  of  persons  must  be  brought  within  one  year  next  after 
the  cause  of  action  had  accrued.-^ ^  The  recognized  distinction  be- 
tween the  two  classes  of  actions  is  that  the  action  brought  under 
section  14,  chapter  83  of  the  Revised  Statutes  is  purely  for  per- 
sonal injuries ;  whereas,  the  action  maintainable  under  section  2, 
chapter  70  of  said  statutes  is  for  pecuniary  loss  sustained  by  the 
widow  and  next  of  kin  as  a  result  of  the  wrongful  death.^^  In 
both  classes,  of  actions,  the  cause  of  action  is  the  wrongful  act  or 
the  default  causing  the  injury  or  the  death,  and  not  the  death. 
The  statute,  therefore,  begins  to  run  from  the  date  of  the  com- 
mission or  the  omission  of  the  wrongful  act,  neglect  or  default.^i 

88  Personal  injuries,  municipalities 

Since  1905  suits  at  law  in  Illinois  for  personal  injuries  against 
cities,  villages  or  towns  must  be  commenced  within  one  year  from 
the  time  an  injury  is  received,  or  from  the  time  the  cause  of 
action  has  accrued. ^^ 

45  Sec.  14,  c.  83,  Hurd  's  Stat.  so  Lake  Shore  &  M.  S.  Ry.  Co.  v. 
1909.  Dvlinski,     67     111.     App.     114,     116 

46  Sec.    3101,  Code   1906    (Miss.).  (1896). 

47  Keyston  Lumber  Yard  v.  Ya-  si  Leroy  v.  Springfield,  81  111.  114, 
zoo  &  M.  V.  E.  Co.,  53  So.  8,  11  115  (1876);  Crane  v.  Chicago  & 
(Miss.    1910).  W.    L    R.    Co.,    233    111.    259,    262 

48  Sec.    14,    c.    83,    Hurd's    Stat.  (1908). 

1909 ;  McAndrews  v.  Chicago,  L.  S.  52  Erford  t.  Peoria,  229  111.  546, 

&  E.  Ry.  Co.,  222  111.  232    (1906).       552    (1907). 
*o  Sec.  2,  c.  70,  Hurd 's  Stat.  1909. 


34  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

An  action  against  the  city  of  Grand  Rapids,  Michigan,  for 
personal  injuries  resulting  from  a  defective  sidewalk  is  barred 
after  ten  days  of  the  injury,  if  no  preliminary  notice  of  the 
injury  has  been  given  within  that  time.^s 

89  Personal  injuries,  railroads 

Actions  against  a  common  carrier  for  personal  injuries  to  their 
employees  caused  by  the  negligence  of  the  common  carrier,  its 
employees  or  equipment,  must  be  brought  within  two  years  from 
the  time  the  cause  of  action  has  accrued.^  ^ 

90  Rent 

Actions  for  arrears  of  rent  must  be  commenced  within  six 
years  of  the  accrual  of  the  cause  of  action. ^^  Rent  due  on  a 
parol  lease  is  barred  in  six  years  of  the  accrual  of  the  action, 
whether  the  action  is  assumpsit,  or  debt:  rent  due  upon  a  lease 
by  indenture  is  barred  in  ten  years  next  after  the  accruing  of 
the  rent  provided  the  action  is  debt  and  not  assumpsit;  the  one 
is  governed  by  subdivision  3  (9728),  the  other  by  (9734),  C.  L. 
1897.56 

91  Replevin  bond  insufficient 

An  action  on  the  case  for  the  failure  to  take  a  sufficient  replevin 
bond  must  be  commenced  within  three  years  next  after  the  ac- 
crual of  the  cause  of  action.^'^ 

92  Sale  of  real  estate 

In  the  absence  of  statute,  an  application  for  the  sale  of  a  de- 
cedent's real  estate  must  be  made  within  seven  years,  unless  a 
longer  delay  is  satisfactorily  explained ;  ^^  and  when  an  order  of 
sale  is  entered,  execution  must  be  issued  and  the  order  enforced 
within  seven  years  of  its  entry.  If  not  so  enforced  the  order 
must  be  revived  by  bringing  the  parties  into  court  within  twenty 
years  of  the  entry  of  the  original  order,  which  will  only  be  re- 
vived when  there  is  something  in  the  condition  of  the  title  which 

ssMoulter  v.   Grand  Rapids,   155  57  Sees.    12,    13,    c.    119,    Hurd'a 

Mich.   165,  168    (1908);    1905  Local  Stat.  1909,  p.  1820. 

Acts,  No.  593,  tit.  16,  sees.  5,  6.  ss  Graham  v.  Brock,  212  111.  579, 

54  1909  Acts,  p.  210   (Mich.).  581  (1904);  White  v.  Horn,  224  ni. 

55  (9728),   C.   L.   1897    (Mich.).  243,  245. 

56  Stewart   v.    Sprague,    71    Mich. 
50,  60  (1888). 


STATUTE  OF  LIMITATIONS  35 

has  prevented  a  sale,  but  not  if  it  is  a  mere  question  of  market 
value.^^ 

The  application  for  the  sale  should  not  be  made  until  after 
the  determination  of  a  homestead,  and  then  only  within  a  reason- 
able time  thereafter,  not  to  exceed  seven  years  from  the  death  of 
the  owner  of  the  homestead.^'' 

Creditors  are  bound  to  wait  until  the  homestead  estate  is 
terminated  and  they  do  not  lose  their  right  to  enforce  payment 
of  their  proved  claims  from  real  estate  by  its  increase  in  value 
during  the  time  that  the  law  requires  them  to  withhold  proceed- 
ings to  enforce  payment.^^ 

93  Seduction 

In  Illinois  actions  for  seduction  or  criminal  conversation  must 
be  commenced  within  two  years.^^  i^  Michigan  the  action  for 
seduction  must  be  brought  within  six  years.^^ 

94  Slander 

An  action  for  slander  must  be  commenced  within  one  year  in 
Illinois  and  two  j^ears  in  Michigan,  next  after  the  accruing  of 
the  cause.^^ 

95  Stockholder's  liability 

A  stockholder's  liability  to  creditors  of  an  insolvent  corpora- 
tion is  barred  within  ten  years  from  the  contracting  of  the  in- 
debtedness by  the  corporation.*55 

96  Suggestion  of  claim  for  mesne  profits 

The  action  or  proceeding  for  mesne  profits  must  be  commenced 
in  Illinois  within  one  year  of  the  recovery  of  the  judgment  in 
ejectment,  and  the  damages  which  are  recoverable  are  for  five 
years  immediately  preceding  the  filing  of  the  suggestions  of  claim 
for  mesne  profits.^^ 

59  White  V.  Horn,  224  111.  243,  64  See.  13,  e.  83,  Hurd's  Stat. 
245.  1909;   1909  Acts,  p.  422   (Mich.). 

60  Frier  v.  Lowe,  232  111.  622,  65  Schalucky  v.  Field,  124  111.  617, 
627   (1908).  622   (1888);   Sec.   16,  c.  83,  Hurd's 

61  Atherton    v.    Hughes,    249    111.  Stat.  1909,  p.  1446. 

317,  323,  324   (1911).  66  Einghouse    v.    Keener,    63    111. 

62  Sec.  14,  c.  83,  Hurd's  Stat.  230,  234,  235  (1872) ;  Sec.  43,  Eject- 
1909.  ment  act   (111.). 

63  "Watson  V.  "Watson,  53  Mich. 
168,  178  (1884);  Stoudt  v.  Shep- 
herd, 73  Mich.  588,  .597  (1889). 


36  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

97  Taxes,  money  paid  as 

A  tax  buyer  who  purchases  under  a  void  sale  may  recover  back 
the  amount  of  his  bid  and  the  taxes  paid  thereafter  to  protect 
the  purchase,  within  five  years  of  the  making  of  the  payments.^'^ 

98  Waste 

Actions  for  waste  must  be  brought  within  six  years  next  after 
the  cause  of  action  had  accrued.^^ 

ACTIONS  AND  PROCEEDINGS 

99  Assumpsit,  account  current 

In  actions  to  recover  the  balance  due  upon  a  mutual  and  open 
account  current,  the  cause  of  action  is  deemed  to  have  accrued 
at  the  time  of  the  last  item.^^ 

100  Assumpsit,  contract 

Actions  of  assumpsit  founded  upon  any  contract  or  liability, 
express  or  implied,  must  be  commenced,  in  Michigan,  within  six 
years  next  after  the  cause  of  action  had  accruedJ*^ 

101  Attachment  of  water-craft 

A  lien  against  a  water-craft  must  be  asserted  within  six  months 
from  the  date  that  the  claim  for  labor  or  materials  is  due.'^^ 

102  Case,  continuing  injury 

A  cause  of  action  arises  upon  a  continuing  injury  day  by  day.'^^ 

103  Case,  damages 

The  statute  of  limitations  bars  a  recovery  of  all  damages, 
whether  nominal  or  substantial  which  are  sustained  prior  to  the 
time  within  which  the  law  requires  an  action  for  their  recovery 
to  be  brought  J  3 

67  Joliet  Stove  Works  v.  Kiep,  230  110,  117  (1869)  ;  Stewart  v. 
111.  550,  556  (1907).  Sprague,   71    Mich.    60;    (9728),   C. 

68  (9728),    C.   L.    1897,    subdn.    5      L.  1897   (Mich.). 

(Mich.).  71  Sec.   3087,   Code   1906    (Miss.). 

69(9732),    C.    L.    1897    (Mich.);  72  Krueger  v.  Grand  Eapids  &  I. 

Sperry  v.  Moore's  Estate,  42  Mich.  R.  Co.,  51  Mich.  144. 

353,  357   (1880).  73  McConnel     v.     Kibbe,     33     lU. 

70  Goodrich   v.    Leland,    18    Mich.  175,  179  (1864). 


STATUTE  OF  LIMITATIONS  37 

104  Case,  Illinois 

An  action  on  the  case  is  barred  within  five  years,  unless  the 
particular  form  of  action,  as  actions  for  slander  and  actions  for 
personal  injuries,  are  made  to  bar  sooner  J  ^ 

105  Case,  Michigan 

All  actions  upon  the  case  founded  upon  any  contract  or  liabil- 
ity, express  or  implied,  except  for  slander  or  libel,  must  be  com- 
menced within  six  years  after  the  cause  of  action  had  accrued/^ 

106  Certiorari,  generally 

In  analogy  to  the  statute  relating  to  the  review  of  judgments 
of  justices  of  the  peace  by  certiorari,  a  petition  for  a  writ  to  re- 
view the  action  of  an  inferior  tribunal  should  be  brought  within 
six  months  from  the  date  of  the  entry  of  the  final  order  or  judg- 
ment to  be  reviewed ;  and  by  analogy  to  the  statute  limiting  the 
time  within  which  to  prosecute  writs  of  error,  the  petition  should 
be  presented  within  period  which  governs  the  prosecution  of 
writs  of  error.  In  either  case  a  further  delay  will  not  bar  the 
right,  if  the  delay  is  satisfactorily  explained  in  the  petition.'^ 
Lapse  of  time  alone,  short  of  limitation  for  the  prosecution  of  a 
writ  of  error,  will  not  bar  the  issuing  of  a  common  law  writ  of 
certiorari,  unless  it  appears  that  since  the  making  of  the  record 
sought  to  be  reviewed,  and  upon  its  assumed  validity,  something 
has  been  done  which  would  cause  great  public  detriment  or  incon- 
venience by  declaring  it  invalid.'^'^  A  common  law  writ  of  cer- 
tiorari will  not  be  granted  to  test  the  legality  of  the  existence  of 
a  municipal  corporation  after  long  delay  and  acquiescence  in  the 
exercise  of  its  powers  J  ^ 

Under  the  present  statute,  a  ease  is  reviewable  upon  certiorari  to 
the  appellate  court  when  there  is  a  constitutional  question  in- 
volved, when  appellate  court  grants  a  certificate  of  importance,  or 

74  Mount  V.  Hunter,  58  HI.  249;  76  Clark  v.  Chicago,  233  HI.   113, 

Sec.    15,   c.    83,   Kurd's   Stat.    1909,  115   (1908). 
p.  1446.  77  Sehlosser   v.   Highway   Commis- 

76(9728),   C.  L.   1897,   subdns.  4,  sioners,    235    HI.    214,    216    (1908); 

7   (Mich.) ;   Krueger  v.  Grand  Eap-  Chicago    v.    Condell,    224    HI.    595, 

ids  &  I.  E.  Co.,  51  Mich.  142;  White  598    (1907). 

River  Lig  &  Booming  Co.  v.  Nelson,  78  Deslauries    v.    Soucie,    222    111. 

45  Mich.  578,  581   (1881).  522,  525    (1906). 


38  ANNOTATED   FORMS   OP   PLEADING   AND   PRACTICE 

when  the  judgment  in  actions  ex  contractu  exceeds  the  sum  of 
$1,000  exclusive  of  costs.  A  mere  judgment  for  costs  is  not  re- 
viewable on  certiorari  in  the  supreme  court/'* 

The  Michigan  limitation  period  for  writs  of  certiorari  is  the 
same  as  for  writs  of  error.^*^ 

107  Certiorari,  justice's  proceeding- 

A  proceeding  by  certiorari  to  review  a  justice's  judgment 
must  be  brought  within  six  months  from  the  time  of  the  rendi- 
tion of  the  judgment.^^ 

108  Claims  against  estates,  administrators 

The  bar  of  the  statute  for  unpresented  claims  against  estates 
applies  to  claims  of  administrators.^ - 

109  Claims  against  estates,  contingent 

A  contingent  claim  against  an  estate  is  barred  within  the  time 
limited  for  the  presentation  of  claims.*^ 

110  Claims  against  estates,  Illinois 

Prior  to  1903  the  limitation  of  claims  against  estates  of  de- 
ceased persons  was  two  years  from  the  date  of  the  issue  of  let- 
ters of  administration.  Since  1903  claims  against  these  estates 
must  be  filed  within  one  year  from  the  date  of  the  issue  of  the 
letters.s^  A  debtor's  death  extends  the  running  of  the  statute 
of  limitations  to  the  expiration  of  one  year  from  the  date  of 
the  issuance  of  letters  of  administration,  and  the  filing  of  a 
claim  on  the  adjustment  day  stops  the  running  of  this  statute.^^ 
The  period  fixed  by  statute  for  the  presentation  of  claims 
has  reference  merely  to  the  right  to  participate  in  the  property 
inventoried.  It  does  not  affect  general  actions  or  set-offs  based 
upon  claims  against  decedents  where  the  claimant  is  not  seek- 
ing the  right  to  a  distributive  share  in  the  inventoried  prop- 
erty.^^ 

79  International  Text  Book  Co.  v.  §4  Hathaway  v.  Merchants '  Loan 
Machorn    (unreported).                               &     Trust     Co.,     218     111.     580,     583 

80  (10499),  C.  L.  1897   (Mich.)  (1905). 

811909    Hurd's    Stat.,    p.     1405,  ss  De    Clerque    v.    Campbell,    231 

par.  77.  111.  442,  445   (1907). 

82  7ft  re  Hodges'  Estate,  157  se  Peacock  v.  Haven,  22  111.  23, 
Mich.   198,  201    (1909).  26     (1859);    CI.    7,    sec.    70,    c.    3, 

83  Pearson    v.    McBean,    231    111.  Hurd's  Stat.  1909,  p.  124. 
536   (1907). 


STATUTE  OF  LIMITATIONS  39 

111  Claims  against  estates,  Michigan 

The  general  provisions  of  the  statute  of  limitations  are  ap- 
plicable to  claims  against  decedent's  estates.^^ 

112  Coram  nobis 

A  motion  in  the  nature  of  a  writ  of  error  coram  nobis  must 
be  made  in  Illinois  at  any  time  within  five  years  after  the  rendi- 
tion of  final  judgment  in  the  case,  except  in  cases  of  minority, 
non  compos  mentis,  or  duress,  in  which  cases  the  time  of  dis- 
ability is  to  be  excluded  from  the  five  3'ears.*^ 

113  Covenant 

An  action  of  covenant  in  Illinois  and  in  Michigan  must  be 
brought  within  ten  years  next  after  the  accruing  of  the  cause 
of  aetion.^^  A  cause  of  action  for  a  breach  of  covenant  accrues 
at  the  time  of  the  breach  of  covenant,  regardless  of  when 
the  damages  were  sustained  in  consequence  of  the  breach.  And 
if  an  action  of  assumpsit  is  resorted  to,  the  action  will  be 
barred  in  Michigan  within  six  years  from  the  breach  of  the  cov- 
enant.^^ 

114  Debt,  Illinois 

An  action  of  debt  is  barred  in  ten  years  if  it  is  based  upon  a 
bond,  promissory  note,  bill  of  exchange,  written  lease,  written 
contract  or  any  other  written  evidence  of  indebtedness.^^ 

115  Debt,  Michigan 

Actions  of  debt  upon  contracts  under  seal  must  be  brought 
within  ten  years  next  after  the  accruing  of  the  cause  of  action.^  ^ 
Actions  of  debt  founded  upon  contract  or  liability  not  under  seal, 
except  judgments  or  decrees  of  courts  of  record,  must  be  insti- 
tuted w'ithin  six  years  next  after  the  cause  of  action  had  ac- 
crued.^^ 

87  gperry  v.  Moore's  Estate,  42  so  Sherwood  v.  Landon,  57  Mich. 
Mich.  357.  219,  224   (1885). 

88  Sec.  89,  Practice  act  1907  9i  Sec.  16,  c.  83,  Kurd's  Stat. 
(ni.).  1909,  p.   1446. 

89  Stelle  V.  Lovejoy,  125  111.  352,  92  Stewart   v.    Spra^e,    71    Mich. 
358   (1888);   Sec.   16,  c.  83,  Kurd's  59;    Goodrich   v.    Leland,    18    Mich. 
Stat.    1909,   p.    1446;    Post   v.   Cam-  117;    (9734),  C.  L.  1897   (Mich.), 
pau,     42     Mich.     90,     94      (1879);  93(9728),    C.    L.    1897,   subdn.    1 
(9734),  C.  L.   1897    (Mich.);   Stew-  (Mich.). 

art  V.   Sprague,  71   Mich.   60. 


40  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

116  Disbarment 

Proceedings  of  disbarment  are  not  included  in  the  express 
terms  of  the  Illinois  statute  of  limitations,  and  courts  will  not 
establish  a  limitation  by  analogy  to  suits,  unless,  from  the  nature 
or  the  circumstances  of  the  particular  case,  justice  to  the 
respondent  requires  it.^^ 

117  Distress  for  rent 

The  landlord's  right  to  distrain  is  barred  in  Illinois  in  six 
months  from  the  expiration  of  the  term  or  the  termination  of  the 
tenancy.^^ 

118  Ejectment,  Florida 

The  exception  to  the  seven  years'  limitation  period  in  favor  of 
minors  is  applicable  to  persons  to  whom  the  title  first  accrues ; 
it  has  no  application  to  persons  who  are  minors  at  the  time  the 
statute  begins  to  run  against  the  parent.^^ 

119  Ejectment,  Illinois 

An  action  of  ejectment  may  be  brought  at  any  time  within 
twenty  years.^'''  A  mortgagee  must  bring  ejectment  before  the 
indebtedness  to  secure  which  the  mortgage  was  given,  is  barred 
under  the  statute  of  limitations.'^s 

120  Ejectment,  Michigan 

An  action  of  ejectment  by  individuals  or  private  corpora- 
tions must  be  brought  within  fifteen  years  next  after  the  cause 
of  action  had  accrued,  if  the  defendant  claims  title  by  adverse 
possession.^^  In  actions  by  or  in  behalf  of  the  state,  the  suit 
must  be  commenced  within  twenty  years  after  the  accrual  of 
the  people's  right  of  title.^^^ 

94  People  V.  Hooper,  218  111.  313,  ss  Pollock  v.  Maison,  41  111.  516, 
322   (1905).  519  et  seq.    (1866). 

95  See.  28,  c.  80,  Hurd  's  Stat.  99  Miller  v.  Beek,  68  Mich.  76,  78 
1909,  p.  1409.  (1888)  ;     Curhay     v.     Bellemer,     70 

96  Armstrong   v.   Wilcox,   57   Fla.  Mich.  106,  110    (1888). 

30,    34    (1909);    Sec.    1723,    Gen'l.  loo  (9724),  C.  L.  1897   (Mich.). 

Stats.  1906. 

97  Illinois  Central  E.  Co.  v.  Gav- 
ins, 238  111.  380,  385   (1909). 


STATUTE  OF   LIMITATIONS  41 

121  Election  contest,  Illinois 

Suits  under  the  election  law,  like  suits  under  the  act  for 
the  removal  of  county  seats,  must  be  brought  within  thirty  days 
after  the  result  of  election  has  been  declared. ^'^^ 

122  Election  contest,  Michigan 

An  application  to  the  board  of  county  canvassers  for  a  re- 
count of  ballots  cast  at  a  city  election  must  be  made  on  or  before 
the  last  day  on  which  the  board  is  in  regular  session  for  the 
purpose  of  taking  action  relative  to  the  applicant's  claim  to 
the  office  in  controversy.  It  comes  too  late  if  made  on  the  last 
day  on  which  the  board  of  canvassers  is  required  to  meet  for 
the  issuing  of  the  certificate  of  election.^^^  js^q  adjournment  of 
the  board  of  canvassers  will  authorize  a  contestant  to  postpone 
making  his  application.^  *^3 

123  Mandamus 

A  proceeding  by  mandamus  is  an  action  at  law  and  should 
be  commenced,  in  Illinois,  within  five  years  of  the  accruing  of 
the  cause  of  action. ^"^^  Under  Michigan  practice,  a  writ  of 
mandamus  will  not  be  allowed  to  parties  who  have  been  culpably 
dilatory  in  making  the  application.^*^" 

124  Quo  warranto 

At  common  law  neither  lapse  of  time  nor  the  conduct  of  the 
relator  constitutes  a  bar  to  a  proceeding  by  quo  warranto  which 
is  not  brought  in  the  interest  of  the  relator.^*^''  But  as  a  part 
of  the  discretion  vested  in  a  court  to  grant  or  refuse  leave  to 
file  the  information,  the  court  may  consider  the  -time  that  has 
elapsed  in  applying  for  the  leave,  along  with  all  of  the  other  cir- 
cumstances of  the  case.^*^^  The  statute  of  limitations  relating 
to  civil  actions  has  no  application  to  quo  warranto  proceedings 
which  seek  to  oust  a  party  who  is  charged  with  unlawfully  ex- 
ercising the  office  of  magistracy.^^* 

101  Devous  V.  Gallatin  County,  lo*  Kenneally  v.  Chicago,  220  111. 
244  111.  40,  44   (1910);   Laws   1871-       485,  50.5    (1906). 

72,    pp.    309,    380,    as    amended    in  ics  People      v.      Judge      Superior 

1895.  Court,  41   Mich.  31,  38    (1879). 

102  Xewton  v.  Canvassers.  94  loe  People  v.  Anderson,  239  111, 
Mich.  45.5.  458  (1892);  Sec.  3725,  266,  270  (1909);  People  v.  Karr, 
C.  L.   1897    (Mich.).  244  111.  374.  385   (1910). 

103  Drennan  v.  Common  Council,  io7  and  los  MePhail  v.  People,  160 
106  Mich.   117,   118    (1895).  111.  77,  81   (1896). 


42  ANNOTATED  FOBAIS   01'^   PLEADING   AND   I'liACTiCE 

125  Replevin 

An  action  of  replevin  must  be  brought  in  Illinois  within 
five/°^  and  in  Michigan  within  six  ^^^  years  from  the  accruing 
of  the  cause  of  action.  The  action  of  replevin  or  trover  accrues 
immediately  upon  the  appropriation  of  the  property  to  one's 
own  use  under  a  claim  which  is  inconsistent  with  that  of  its 
owner.  1" 

126  Trespass,  generally 

An  action  for  a  trespass  which  has  resulted  in  immediate 
damage  accrues  at  the  time  the  trespass  is  committed,  except  in 
cases  of  continuous  trespass  when  the  commission  of  each  tres- 
pass is  a  new  cause  of  action.  No  right  of  action  of  trespass 
arises  unless  there  is  concurrence  of  wrong  and  damage.  The 
plaintiff  must  fix  some  distinct  wrong  upon  the  defendant  result- 
ing in  damage  within  the  period  of  the  statutory  limitation."^ 

127  Trespass,  Illinois 

An  action  of  trespass  to  recover  damages  for  an  injury  done  to 
personal  or  real  property  is  barred  within  five  years  next  after 
the  accrual  of  the  cause  of  action.^^^ 

128  Trespass,  Michigan 

Actions  of  trespass  upon  land  must  be  brought  within  two 
years  of  the  accruing  of  the  right  of  action.^^^ 

129  Trover 

An  action  of  trover  is  barred,  in  Illinois,  within  five,"^  and 
in  Michigan  within  six^^^  years  from  the  accrual  of  the  cause 
of  action. 

losCarr  v.  Barnett,  21  111.  App.  i"  See.    15,    c.  83,    Hurd's   Stat. 

137,    138    (1886);    Sec.    15,    c.    83,  1909,  p.  1446. 

Hurd's  Stat.  1909,  p.  1446.  "*  1909    Acts,  p.    422     (Mich.) ; 

110  (9728)  C.  L.  1897,  subdn.  6  White  Eiver  Log  &  Booming  Co.  v. 
(Mich)  Nelson,  45  Mich.  581. 

111  Carr  V.  Barnett,  swpra.  us  Sec.    15,    c.  83,    Hurd's    Stat. 

112  National  Cooper  Co.  v.  Minne-  1909,  p.  1446. 

seta  Mining  Co.,   57  Mich.   83,  92,  ii«  (9728),   C.   L.    1897,  subdn.   6 

93  (1885).  (Mich.). 


STATUTE  OP  LIMITATIONS  43 

The  statute  of  limitations  runs  against  each  separate  and 
distinct  wrongful  conversion. ^^^ 

130  Writ  of  error,  Illinois 

A  writ  of  error  must  be  brought  within  three  years  of  the 
rendition  of  the  judgment,  unless,  at  the  time  of  the  entry  of 
the  judgment,  the  party  aggrieved  is  an  infant,  non  compos 
mentis,  or  under  duress,  in  which  case  the  time  of  disability  is 
excluded.^  ^^  The  time  for  suing  out  a  writ  of  error  does  not 
begin  to  run  until  the  judgment  becomes  final.  If  a  motion  for  a 
new  trial  has  been  made  and  has  been  continued  from  term  to 
term,  the  judgment  does  not  become  final  until  the  motion  is 
disposed  of.  This  rule  is  applicable  to  cases  of  the  fourth  class 
reviewable  under  section  23  of  the  Chicago  Municipal  Court 
act.119 

In  the  organization  of  a  drainage  district  under  the  Levee 
act  a  writ  of  error  may  be  sued  out  at  any  time  within  three 
years  to  review  the  final  order  organizing  the  district.^^o 

131  Writ  of  error,  Michigan 

No  writ  of  error  can  issue  beyond  one  year  of  the  rendition  of 
the  judgment,  except  in  case  of  extension  of  time,  in  case  of 
disability  and  death,  and  in  actions  of  debt  or  scire  facias.  An 
additional  -six  months  to  the  one  year  of  limitation,  but  no  more, 
may  be  obtained  from  the  supreme  court  by  special  motion  and 
upon  proper  showing.  Persons  under  twenty-one  years  of  age, 
insane  persons,  persons  imprisoned  for  any  term  of  years  less 
than  for  life  on  a  criminal  charge,  and  persons  under  coverture, 
may  bring  a  writ  of  error  within  two  years  after  the  removal 
of  the  disability ;  or  in  case  of  death  of  the  person  under  dis- 
ability, the  heirs  may  bring  error  within  two  years  after  the 
death,  provided  that  in  either  case  the  writ  is  issued  within 
five  years  of  the  rendition  of  the  judgment.  In  debt  or  scire 
facias  the  writ  may  be  sued  out  within  two  years  after  the 
bringing  of  the  action  of  debt  or  scire  facias }^^ 

117  Knisely  v.  Stein,  52  Mich.  380,  120  Drummer  Creek  Drainage  Dis- 
382   (1884).  trict  v.  Eoth,  244  111.  68,  72  (1910). 

118  Sec.  117,  c.  110,  Kurd's  Stat.  121  (10492-10496),  C.  L.  1897 
1909.  (Mich.);    Bliss  v.    Caille   Bros.   Co., 

iisHosking    v.    Southern    Pacific       157  Mich.  258,  259    (1909). 
Co.,  243  lU.   320,   330,   331    (1910). 


44  ANNOTATED   FORMS   OP   PLEADING   AND   PRACTICE 

SUSPENSION  OF  STATUTE 

132  Absence  from  the  state 

The  time  that  a  person  is  absent  from  the  state  is  not  consid- 
ered in  Illinois  a  part  of  the  limitation  period;  but  this  has  no 
application  where  both  parties  are  nonresidents.^  ^2 

133  Death 

Actions  which  survive  and  which  have  not  been  barred  prior 
to  a  person's  death,  may,  in  Illinois,  and  in  Michigan,  be  com- 
menced by  his  representatives  within  one  year  after  the  death 
and  the  expiration  of  the  regular  period ;  or  they  may  be  prose- 
cuted against  the  representatives  of  the  deceased  person  within 
one  year  from  the  issuance  of  the  letters  and  the  expiration  of 
the  regular  period  of  limitation.^^s  After  the  statute  of  limita- 
tions has  commenced  to  run  against  a  person,  its  rumiing  is 
not  interrupted  by  his  death,  notwithstanding  the  existence  of 
minors.^-"* 

134  Disability,  generally 

The  disability  of  minority  is  not  removed  by  appointment  of  a 
guardian,  but  the  minor  has  the  full  period  of  the  time,  after 
reaching  majority,  within  which  to  bring  his  action.^^s 

135  Disability,  Illinois 

Persons  under  disability  have  two  years  additional  from  the 
removal  of  the  disability  within  which  to  bring  suit.  The  per- 
sons under  disability  are  minors,  males  under  twenty-one  years 
of  age,  females  under  eighteen  years  of  age,  non  compos  mentis, 
and  imprisoned  criminals.^  2° 

136  Disability,  Michigan 

Persons  under  twenty-one  years  of  age,  married  women,  in- 
sane persons,  convicts,  absentees  from  the  United  States,  except 
those  who  are  within  one  of  the  British  North  America  prov- 

122  Sec.  18,  c.  83,  Hurd's  Stat.  ^25  Keating  v.  Michigan  Central 
1909.  E.  Co.,  94  Mich.  219,  221   (1892). 

123  Sec.  19,  c.  83,  Hurd's  Stat.  126  Sec.  21,  c.  83,  Hurd's  Stat. 
1909;    (9723),   C.   L.   1897    (Mich.).  1909. 

124  Armstrong  v.  Wilcox,  57  Fla. 
34. 


STATUTE   OF   LIMITATIONS  45 

inces,  and  all  persons  claiming  under  them  are  allowed  five 
years  from  the  time  of  the  removal  of  the  disability  within  which 
to  make  an  entry  or  to  bring  an  action  for  the  recovery  of  real 
estate,  notwithstanding  the  bar  of  the  action  under  the  other 
provisions  of  the  statute. ^^^^  The  same  class  of  persons,  after 
their  respective  disabilities  have  been  removed,  are  allowed  the 
same  time  within  which  to  institute  personal  actions  as  is  pro- 
vided for  persons  who  are  not  under  disabilities.  ^^^  Since 
the  Act  of  1855,  notwithstanding  the  Amendatory  act  of  1863, 
marriage  is  no  longer  a  disability  under  the  limitation  statute, 
the  provision  of  the  statute  concerning  marriage  being  regarded 
as  a  repeal  by  implication.129 

137  Legal  proceedings 

During  the  pendency  of  an  action  on  appeal  or  writ  of  error, 
in  Illinois,  the  statute  of  limitations  is  suspended  until  the  entry 
of  final  judgment.130  So  is  the  running  of  the  statute  ar- 
rested during  the  continuance  of  an  injunction  staying  the 
commencement  of  the  action,  or  during  statutory  prohibition.^^i 
The  statute  of  limitations  does  not  commence  to  run  against  a 
remanded  cause  until  the  expiration  of  two  years  from  the  date 
of  the  rendition  of  the  reviewing  court's  judgment.^ ^2  Jq 
Michigan,  upon  the  arrest  of  a  judgment,  or  its  reversal,  a 
new  action  must  be  brought  for  the  same  cause  of  action  at  any 
time  within  one  year  after  the  determination  of  the  original 
action,  or  after  the  reversal  of  the  judgment,  ^^s 

EEVIVAL 

138  Torts,  new  promise 

A  subsequent  promise  will  not  remove  the  bar  of  the  statute 
of  limitations  against  actions  ex  delicto ?-^^  And  this  is  true 
in  cases  where  the  tort  might  be  waived  and  an  action  of  as- 
sumpsit maintained,  for  the  foundation  of  the  action  is  the  tort 
and  not  the  promise.^^^ 

127  (9718),  C.  L.  1897  (Mich.)  i32  McElroy  v.  Catholic  Press  Co., 

128(9733),   C.   L.    1897    (Mich.);  254  111.  292. 

Watson  V.  Watson,  53  Mich.  178.  i33  (9723),  C.  L.  1897  (Mich.). 

129  King  V.  Merritt,  67  Mich.  194,  i34  Nelson  v.  Petterson,  229  lU. 
217  (1887);  (8692),  C.  L.  1807;  240,  245,  247  (1907);  Holtham  v. 
Curbay  v.   Bellemer,   70  Mich.   110.  Detroit,  136  Mich.  17,  21   (1904). 

130  Nevitt  V.   Woodburn,   160  IlL  iss  Nelson  v.  Petterson,  »i*pra. 
203,  212  (1896). 

131  Sec.    23,   c.    83,   Hurd's   Stat. 
1909. 


CHAPTER   V 
JURISDICTION 

IN  GENERAL  §§ 

§§  152  Collateral     attack,     petition, 

139  Jurisdiction  defined  ^^^^  of 

140  Jurisdiction,  test  COURTS 

141  Due  process  of  law  ^53  Circuit  courts,  administration 


142  Law  and  fact 


154  Circuit  courts,  drainage 


157  County    and    probate    courts, 

trespass 

158  City  courts 


143  Persons,   nonresidents  ^55  bounty    and    probate    courts, 

144  Persons,  partners  administration 

145  Subject  matter,  consent  jgg  bounty    and    probate    courts, 

146  Subject  matter,   estoppel  and  drainage 

waiver 

147  Want  of  jurisdiction,  notice 

148  Concurrent 

149  Statutory  remedies 

150  Federal  statutes,  penal  PARTICULAR  SUBJECTS 

151  Collateral  attack,  generally  159  Attorney's  lien 

IN  GENERAL 

139  Jurisdiction  defined 

Jurisdiction  is  authority  to  hear  and  to  decide  a  case.*  Ju- 
risdiction of  the  person  is  the  authority  obtained  by  process  or 
appearance  to  render  a  personal  judgment. ^  Jurisdiction  of 
the  subject  matter  is  the  power  to  hear  and  to  determine  a  case 
of  the  general  class  to  which  the  proceeding  in  question  belongs.^ 

140  Jurisdiction,  test 

The  power  to  pass  upon  the  question,  and  not  which  way  it 
has  been  decided,  is  the  test  of  jurisdiction.* 

141  Due  process  of  law 

The  power  to  render  judgment  is  a  question  of  due  process  of 
law ;  and  if  a  party  is  not  amenable  to  service  of  process  within 

1  People  V.  Superior  Court,  234  *  People  v.  Belz,  252  HI.  296,  299 
111.  186,  199   (1908).                                     (1911). 

2  and  3  People  V.   Harper,   244   111. 
121,  122,  123  (1910). 

46 


JURISDICTION  47 

the  state,  a  judgment  is  not  rendered  in  pursuance  to  due  proc- 
ess of  law.^ 

142  Law  and  fact 

Jurisdiction  is  not  always  a  question  of  law,  but  it  might 
be  one  of  law  and  fact.^ 

143  Persons,  nonresidents 

A  civil  action  is  maintainable  against  a  nonresident  defend- 
ant and  service  of  process  may  be  had  upon  him  during  his 
voluntary  attendance  before  a  notary  publicJ 

144  Persons,  partners 

A  summons  against  a  nonresident  partner  is  original  process, 
and  not  in  aid  of  jurisdiction,  where  jurisdiction  has  been 
acquired  by  service  of  process  upon  a  resident  co-partner  in  a 
personal  action.  And  if  a  court  has  no  extra-territorial  juris- 
diction, it  is  without  power  to  issue  summons  against  a  non- 
resident partner.^ 

145  Subject  matter,  consent 

The  parties  to  a  suit  cannot  invest  a  court  with  jurisdiction 
by  agreement  or  consent,  where  the  law  has  not  conferred  upon 
the  court  jurisdiction  of  the  subject  matter.® 

146  Subject  matter,  estoppel  and  waiver 

The  appearance  of  parties  generally  in  a  matter  over  which  a 
tribunal  lacks  jurisdiction  does  not  estop  them  from  afterwards 
raising  the  question  of  jurisdiction-^^  Jurisdiction  over  the 
subject  matter  is  not  waivable.!^ 

BBooz  V  Texas  &  P.  Ry.  Co.,  250  111.  268,  271  (1904);  Bates  v.  Hal- 
Ill.  37B,  379   (1911).  linan.  220  HI.  21,  25   (1906). 

6  Hill  Co.  V.  Contractors'  Supply  i"  Drainage  Commissioners  v. 
&  Equipment  Co.,  249  111.  304,  309  Cerro  Gordo,  217  HI.  488,  494 
(1911)  (1905)  ;  People  v.  Sangramon  Draln- 

7  Greer  v.  Young,  120  111.  184,  age  District,  253  111.  332,  337 
187,  190    (1887).  (1912). 

8  Wilcox  V.  Conklin,  255  HI.  604,  "  Harty  Bros.  v.  Polakow,  237 
608    (1912).  111.  559,  563  (1909);  Highway  Com- 

9  Audubon  v.  Hand,  223  111.  367,  missicners  v.  Smith,  217  111.  250, 
370   (1906);  Fisher  v.  Chicago,  213  260    (1905). 


48  ANNOTATED   FORMS   OP    PLEADING   AND   PRACTICE 

147  Want  of  jurisdiction,  notice 

A  court  may  take  notice  of  a  want  of  jurisdiction  upon  its  own 
motion.^  2 

148  Concurrent 

In  the  courts  of  a  state,  that  court  which  first  acquires  juris- 
diction retains  it  until  it  makes  a  complete  disposition  of  the 
matter;  but  in  courts  of  different  states,  two  suits  may  proceed 
until  judgment  is  rendered  in  one  of  them.  After  judgment, 
its  recovery  and  payment,  without  collusion  and  upon  full  dis- 
closure of  the  suit,  will  bar  a  recovery  in  the  other  suit,  regard- 
less of  which  suit  was  first  commenced.  The  recovery  of  the 
first  judgment  fixes  the  rights  of  the  parties,  and  a  judgment 
debtor  who  fails  to  pay  it  and  to  set  it  up  as  a  bar  in  the  other 
suit  will  not  be  protected.  The  foregoing  rule  is  applicable  to 
attachment  and  garnishment.  ^^  The  rule  that  a  court  which 
first  acquires  jurisdiction  retains  it  until  final  disposition  of  the 
subject  matter  has  no  application  to  courts  of  different  states.^  ^ 

149  Statutory  remedies 

In  the  absence  of  statutory  provision,  statutory  remedies  are 
enforcible  in  courts  of  law  only.^^ 

150  Federal  statutes,  penal 

A  right  of  action  which  arises  from  a  breach  of  duty  imposed 
by  a  statute  of  the  United  States  is  enforcible  in  a  state  court, 
unless  the  action  is  penal  in  its  nature.  One  state  cannot  enforce 
the  penal  laws  of  another  state  or  country. i*^ 

151  Collateral  attack,  generally 

The  decision  of  a  court  or  other  tribunal  cannot  be  attacked 
collaterally  when  it  is  the  result  of  the  exercise  of  discretion  and 
the  court  or  tribunal  has  jurisdiction;  but  a  decision  is  subject 

12  Fisher  v.  Chicago,  213  111.  271.  is  Franklin  County  v.  Blake,  247 

13  Becker    v.    Illinois    Central    E,      111.  500,501   (1910). 

Co.,  250,  40,  44   (1911).  le  Chesapeake    &    O.    Ey.    Co.    v. 

14  Lancashire  Ins.  Co.  v.  Corbetts,  American  Exchange  Bank,  92  Va. 
165  HI.  592,  605  (1897).  495,  502,  504  (1896). 


JURISDICTION  49 

to  collateral  attack  when  the  particular  tribunal  lacks  juris- 
diction.^^ 

152  Collateral  attack ;  petition,  want  of 

The  failure  to  find  a  petition  upon  which  the  jurisdiction  of 
an  inferior  tribunal  depends  is  insufficient  to  prove  the  want  of 
such  a  petition.^  s 

COUETS 

153  Circuit  courts,  administration 

The  appellate  jurisdiction  of  the  circuit  courts  of  Illinois  over 
probate  matters  is  limited  to  the  particular  order  appealed  from ; 
and  when  that  is  disposed  of,  the  order  of  the  circuit  court  is 
transmitted  to  the  county  or  probate  court  together  with  the 
original  will  and  probate  thereby  revesting  in  the  latter  court 
full  and  complete  jurisdiction  over  the  administration  and  the 
parties.i^ 

154  Circuit  courts,  drainage 

An  appeal  from  a  classification  of  a  drainage  assessment  only 
brings  up  errors,  if  any,  in  the  classification  of  the  parties  ap- 
pealing.2'' 

155  County  and  probate  courts,  administration 

In  all  matters  concerning  the  probate  of  wills,  the  county  and 
probate  courts  of  Illinois  have  original  exclusive  jurisdiction.^^ 

156  County  and  probate  courts,  drainage 

On  appeal  from  a  classification  of  a  drainage  assessment,  the 
county  court  has  no  power  to  proceed  de  novo,  or  to  interfere 
with  the  classification  made  by  the  commissioners,  but  it  may 
correct  errors,  if  any,  in  so  far  as  the  classification  relates  to  the 
lands  of  persons  within  its  jurisdiction.-^ 

17  McDonaM  v.  Peoplo.  214  111.  20  People  v.  Grace,  237  111.  265, 
83,  86    (1905).  268   (1908). 

18  People  V.  Ellis,  253  111.  369,  21  Schofield  v.  Thomas,  231  HI. 
375    (1912).  122. 

19  Schofielrl    V.    Thomas,    231    111.  22  People  v.  Grace,  237  111.  268. 
114,     122,     123     (1907);     Dean     v. 

Dean,  239  lU.  424,  426,  427   (1909). 


50  ANNOTATED  FORMS   OF   PLEADING   AND   PRACTICE 

157  County  and  probate  courts,  trespass 

A  county  court,  under  Illinois  law,  has  jurisdiction  in  actions 
for  damages  not  exceeding  $1,000  for  an  injury  to  real  prop- 
erty, but  it  has  no  power  to  try  title  to  such  property.^s 

158  City  courts 

The  territorial  limits  of  jurisdiction  of  a  city  court  for  the 
service  of  original  process  is  confined  to  the  city  limits  wherein 
the  court  is  located.^^ 

PARTICULAR  SUBJECTS 

159  Attorney's  lien 

In  the  absence  of  statute,  a  court  of  equity  is  the  only  court 
which  has  jurisdiction  to  enforce  a  lien.  By  Illinois  statute,  an 
attorney's  lien  is  enforcible  at  law  or  in  chancery .^^ 

23  Boyd  V.  Kimmel,  244  111.  545,  25  Standidge  v.  Chicago  Rys.  Co., 
550   (1910).  254    111.     524,     531     (1912);     1909 

24  Maccabees   v.    Harrington,   227  Laws,  p.  97  (111.). 
111.  511,  517  (1907). 


CHAPTER   VI 

VENUE 

IN  GENERAL  §§ 

g5  167  Municipal  corporations,  Mary- 

160  Right,  nature  land  and  Michigan 

161  Privileges,   legal   consultation  168  Nonresident  partners 

162  Criminal  process  169  Railroads,  Illinois 

LOCAL  AND  TRANSITORY 
PARTIES  ACTIONS 

170  Test 

163  Foreign    corporations,    doing      ,„,,,,.     . 

171  Illinois 
business 

,..  „       .  ..  •  172  Maryland 

164  Foreign    corporations,    insur-  •'. 

.  173  Michigan 

ance  companies  ^„^  ,„    ^  ...     .   . 

,„^  „      .  ^.  ,  174  West  Virginia 

165  Foreign  corporations,  personal 

injuries  ACTIONS 

166  Municipal    corporations,    Illi-      175  Assumpsit 

nois  176  Attachment 

IN  GENERAL 

160  Right,  nature 

A  party's  right  to  be  sued  in  the  county  of  his  residence  is 
statutory  and  substantial ;  but  this  right  is  waivable.^ 

161  Privileges,  legal  consultation 

A  person  is  privileged  from  service  with  civil  process  during 
his  necessary  consultation  with  his  attorney  in  a  foreign  county. - 

162  Criminal  process 

Criminal  process  cannot  be  used  to  subject  nonresidents  to 
civil  process  in  counties  of  their  nonresidence.^ 

1  Humphrey    v.    Phillips,    57    111.  •"'  McNab  v.  Bennett,  66  III.   157, 

132,    135    (1870);    Sec.    6.    Practice       160     (1872);    Sec.    6.    Practice    act 
set   1907    (Til.).  1907    (111.). 

-  Jaeobson    v.    Hosmer,    76    Mich. 
234,  236   (1889). 

51 


52  ANNOTATED  FORMS  OF   PLEADING   AND  PRACTICE 

PARTIES 

163  Foreign  corporations,  doing  business 

A  foreign  corporation  which  is  neither  doing  business  nor  is 
having  a  local  agent  in  the  State  cannot  be  sued  in  Illinois.-* 

164  Foreign  corporations,  insurance  companies 

An  action  against  a  foreign  insurance  company  as  sole  defend- 
ant, upon  a  policy  of  insurance  issued  upon  the  life  of  a  person 
who  did  not  reside  at  the  date  of  the  policy,  or  at  the  date  of 
his  death,  in  the  county  of  its  statutory  agent,  must  be  brought 
in  Virginia,  in  the  county  of  such  agent's  residence.^ 

165  Foreign  corporations,  personal  injuries 

In  Virginia  an  action  for  personal  injuries  against  a  foreign 
corporation  may  be  instituted  in  the  county  where  the  injury 
occurred  and  process  may  be  served  upon  the  statutory  agent 
in  the  county  of  his  appointment  Or  residence.^ 

166  Municipal  corporations,  Illinois 

The  bringing  of  suits  by  and  against  counties  is  purely  statu- 
tory. All  local  or  transitory  actions  against  a  county  must  be 
prosecuted  in  any  court  of  general  jurisdiction  in  the  county 
against  which  the  action  is  commenced.  All  local  or  transitory 
actions  by  a  county  must  be  commenced  in  the  county  in  which 
the  defendant  resides.^  A  proceeding  by  mandamus  is  a  suit 
or  action  and  against  a  county  it  must  be  brought  in  the  county 
of  the  defendant.^ 

167  Municipal  corporations,  Maryland  and  Michigan 

In  transitory  actions,  a  municipal  corporation  can  only  be 
sued  within  its  territorial  limits.  This  is  at  common  law  and 
it  is  not  changed  by  Maryland  statute.    In  local  actions,  a  muni- 

4  Midland   P.   Ey.   Co.   v.   McDer-  7  Schuyler      County      v.      Mercer 

mid,  91  111.  170,  173   (1878).  County.  4  Gilm.  20,  23  (1847);  Sec. 

sDeatrick  v.  State  Life  Ins.  Co.,  31,  c.  34  Hurd's  Stat.  1909,  p.  627. 

107  Va.  602,  615  (1907);  Sees.  3214,  «  McBane   v.    People,   50   111.   503, 

3215,  Code  1904  (Va.).  507   (1869);   Sec.  31,  c.  34,  Hurd's 

6  Carr  v.  Bates,  108  Va.  371,  376  Stat.  1909. 
(1908)  ;  Sees.  3215,  3220,  3224,  3225, 
1104,  Code  1904  (Va.). 


VENUE  53 

cipal  corporation  is  suable  in  the  jurisdiction  in  which  the  cause 
of  action  had  arisen.^ 

168  Nonresident  partners 

A  partnership  consisting  of  nonresident  members  may  be  sued 
in  any  county  in  which  it  is  doing  business  and  has  an  agent.^*^ 
The  word  nonresident  refers  to  anyone  who  does  not  reside  in 
the  county  or  in  the  state.  Nonresident  does  not  mean  a  non- 
resident of  the  state. 

169  Railroads,  Illinois 

An  action  at  law  against  a  railroad  corporation  having  a 
principal  office  in  the  state  may  be  prosecuted  in  the  county 
where  the  cause  of  action  has  accrued,  or  in  any  county  into 
or  through  w^hich  its  road  runs,  by  first  having  a  summons 
issued  and  returned  that  the  railroad  company  has  no  officer 
or  agent  within  the  county  upon  whom  a  copy  of  the  process 
can  be  delivered  for  the  purpose  of  affecting  service,  and  by 
filing  an  affidavit  of  publication,  publishing  notice,  and  mail- 
ing the  same  as  in  chancery  cases.  This  service  will  sustain  a 
judgment  in-  persomm  against  it.^^  A  corporation  has  a  legal 
residence  for  the  purpose  of  suit  in  the  county  in  which  it 
exercises  corporate  powers,  and  where  it  lawfully  establishes 
and  maintains  a  principal  office  or  place  of  business,  although 
not  in  the  county  where  its  road  is  located.^  ^ 

LOCAL  AND  TRANSITORY  ACTIONS 

170  Test 

Actions  in  tort  are  transitory  or  local  in  accordance  with 
the  subject  of  the  injury,  regardless  of  where  or  the  means 
whereby  the  injury  was  committed.  Thus,  an  action  for  an 
injury  to  real  estate  or  to  a  private  or  public  easement,  is  local ; 
and  an  action  for  an  injury  to  an  individual  is  transitory,  for 

9  Phillips  V.  Baltimore,  110  Md.  416  (1910);  Sec.  13,  Practice  act 
431,   436    (1909);    Sec.   62.   art.   23,      1907  (111.). 

Code     (Md.);     Baltimore    v.    Mere-  "Nelson  v.  Chicago,  B.  &  Q.  R. 

dith's  Ford  Turnpike  Co.,  104  Md.  Co..  22.5  111.  197  (1907). 

351,   359    (1906);    Pack,    Woods   &  12  Bristol  v.  Chicago  &  A.  R.  Co., 

Co.    V.    Greenbush,    62    Mich.    122  15    HI.    436.    437    (1854);    Sec.    6, 

(1886).  Practice  act  1907    (111.). 

10  Watson  V.   Coon,   247  111.   414, 


54  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

the  reason  that  he  has  no  fixed  or  immovable  locality.^ ^  In 
Michigan,  since  1861  actions  of  trespass  against  nonresident 
defendants  are  transitory  and  not  local.^"* 

171  lUinois 

Transitory  actions  must  be  brought  in  the  county  of  the 
defendant's  residence,  or  where  he  is  found.  Actions  against 
defendants  who  reside  in  different  counties  should  be  brought 
in  the  county  where  one  of  them  actually  resides.  ^^  Personal 
actions  may  be  commenced  and  process  may  be  issued  to  other 
counties  for  service  upon  nonresident  defendants;  but  no  judg- 
ment can  be  rendered  against  the  nonresident  defendants  unless 
they  appear  and  defend  the  action  or  there  is  judgment  against 
a  resident  defendant.^®  The  court  does  not  lose  jurisdiction 
over  a  nonresident  defendant,  under  section  2,  of  the  Practice 
act,  by  directing  a  verdict  in  favor  of  a  resident  defendant, 
where  the  resident  is  made  defendant  in  good  faith  and  under 
the  reasonable  belief  that  a  cause  of  action  exists  against  him, 
and  the  nonresident  defendant  appears  and  defends  the  action.i^ 

172  Maryland 

A  person  is  suable  in  the  county  of  his  residence,  or  in  the 
county  in  which  he  carries  on  a  regular  business,  or  in  which  he 
is  habitually  or  continuously  employed  in  a  fixed  occupation 
connected  with  some  branch  of  trade,  industry,  commerce,  or 
some  usual  calling  or  profession.  It  is  not  necessary  that  the 
business  should  be  that  of  the  person  sued,  as  an  employee  is  as 
much  within  the  statute  as  an  employer.  Nor  is  the  failure  to 
receive  remuneration  for  services  an  element  of  exemption  from 
the  statute.  But  the  mere  transaction  of  one's  own  private 
affairs  is  not  within  the  statute.  Nor  does  a  single  transaction 
of  a  particular  business  constitute  the  carrying  on  of  business. ^^ 

isGunther  v.  Dranbauer,  86  Md.  le  See.  2,  c.   110,  111.  Rev.  Stat.; 

1,  6   (1897).  WiUiams    v.    Morris,    237    111.    254, 

"Freud    v.    Rohnert,    131    Mich.  258    (1908). 

606,    607    (1902);     (10217),    C.    L.  "Lehigh    Valley    Trans.    Co.    v. 

1897  (Mich.)  amended  in  1903  Acts,  Post   Sugar  Co.,    228    111.    121,    132 

p.  406.  (1907). 

15  Sandusky    v,    Sidwell,    173    HI.  is  Gemundt  v.  Shipley,  98  Md.  657, 

493,      495      (1898);      Harrison     v.  661   (1904);  Cromwell  v.  Willis,  96 

Thackaberry,     248     lU.     512,     515  Md.  260,  266  (1903);  Sec.  132,  art. 

(1911) ;   Sec.  6,  Practice  act   1907  75,  Code  (Md.). 
(111.). 


VENUE  55 

173  Michigan 

In  transitory  actions,  residents  of  the  state  of  Michigan  have 
the  statutory  right  to  sue  and  to  be  sued  in  the  county  of  the 
plaintiff's  or  defendant's  domicile.^^  This  right  is  not  extended 
to  nonresidents  of  the  state  when  sued; 20  but  it  is  applicable 
to  nonresidents  who  sue,  although  the  action  may  be  brought 
against  a  nonresident.-^  The  right  to  sue  out  of  the  county  is 
as  much  substantial  as  it  is  to  be  sued  in  one's  county.-^ 
Defendants  who  are  jointly,  and  not  severally,  liable  on  a  con- 
tract, in  ejectment,  or  in  tort,  may  be  sued  in  the  county  where 
either  of  them  resides,  and  the  other  may  be  served  in  the 
county  of  his  residence.-^ 

174  West  Virginia 

Transitory  actions  against  nonresidents  may  be  brought  in 
any  county  where  they  may  be  found  or  have  an  estate  or 
debts  due  them.^* 

ACTIONS 

175  Assumpsit 

An  action  of  assumpsit  which  is  based  upon  the  waiver  of 
a  trespass  or  injury  to  real  estate,  is  transitory.-^ 

176  Attachment 

In  cases  of  attachment,  jurisdiction  is  founded  upon  the 
presence  of  property  or  effects  against  which  an  attachment 
may  be  directed,  and  not  upon  the  defendant's  residence.  So 
that  a  defendant's  property  is  attachable  in  any  county  where 
it  is  found  or  where  his  creditor  resides,  although  his  residence 
is  in  a  different  county.-*^     An  indebtedness  which  is  not  due 

19  Haywood  v.  Johnson,  41  Mich.  23(10010),  C.  L.  1897  (Mich.) 
598  (1879);  (10216),  C.  L.  1897  amended  in  1901  Acts,  p.  354; 
(Mich.)  amended  in  1899  Acts,  p.  Brown  v.  Bennett,  157  Mich.  654, 
454.  658  (1909). 

20  Atkins  V.  Borstler,  46  Mich.  552  24  Coulter  v.  Blatchley,  51  W.  Va. 
(1881).  163,    164    (1902);    CI.   4,   sec.    1,   c. 

21  Sleight   V.   Swanson,    127   Mich.  123,  Code   (W.  Va.). 

436    (1901);     (10216),    C.    L.    1897  25  Bradlev-Watkins  Co.  v.  Adams, 

(Mich.)   supra.  144  Mich.  142,  146  (1906);  (11207), 

22  Monroe     v.     St.     Clair     Circuit       C.  L.  1897   (Mich.). 

Judge,    84   N.   W.   305,   306    (Mich,  26  Smith  v.  Mulhern,  57  Miss.  591, 

1900) ;  Jacobson  V.  Hosmer,  76  Mich.      593,    (1880);    Barnett    ▼.    Eing,   55 
236.  Miss.   97    (1877). 


56  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

is  attachable  only  in  the  county  of  the  debtor's  residence,  or 
last  residence,  or  where  his  property  is  found. -'^  In  West 
Virginia,  for  the  purpose  of  attachment  and  garnishment,  the 
situs  of  a  debt  is  the  residence  of  the  debtor,  and  not  that  of 
the  creditor,  and  the  debt  may  be  attached  and  garnisheed  in 
the  hands  of  a  foreign  railroad  corporation  which  is  authorized 
to  do  business  in  the  state,  irrespective  of  where  the  debt  was 
contracted  or  was  made  payable.  This  is  based  upon  the  con- 
struction of  a  railroad  statute.  It  has  no  application  to  mer- 
cantile foreign  corporations.-^ 

27  Yale  V.  MeDaniel,  C9  Miss.  337,  58  W.  Va.  388  (1905);  Sec.  30,  c. 
338  (1891);  Sec.  2459,  Code  1880  54,  Code  (See.  2322,  Ann.  Code 
(Miss.).  1906  W.  Va.). 

28  Baltimore  &  0.  K.  Co.  v.  Allen, 


CHAPTER   VII 


PARTIES 


PRINCIPLES 


177  Legal  and  equitable  title 

178  Title    or    interest,    burden   of 

proof 

179  Name,  legal 

180  Name,  assumed 

181  Name,  middle 

182  Nominal  and  use  plaintiff 

183  Nominal  and  use  plaintiff,  res 

judicata 

184  Joinder 

185  Nonjoinder 

186  Misjoinder 

187  Withdrawal 

PERSONS,    CORPORATIONS 
AND    ASSOCIATIONS 

188  Administrator  de  bonis  non 

189  Assignee 

190  Corporations 

191  Counties 

192  Executors 

193  Foreign  corporations 

194  Husband  and  wife 

195  Insane  persons 

196  Joint  and  several  obligees  and 

obligors,  plaintiffs 

197  Joint  and  several  obligees  and 

obligors,  defendants 

198  Joint  owners 

199  Joint  wrongdoers 

200  Legatees 

201  Minors 

202  Nonresidents 


§§ 

203  Partners 

204  Receivers 

205  Religious  organizations 

206  School  districts,  discontinued 

207  State  board  of  health 

208  Townships  and  highway  com- 

missioners 

209  Voluntary  associations 

PRACTICE 

210  Addition  and  substitution   of 

plaintiff 

211  Bankruptcy,  petition  for  sub- 

stitution of  trustee 

212  Change  of  defendant,  petition 

and  order 

213  Death,    suggestion    of,    neces- 

sity of 

214  Death  of  party,  practice,  Dis- 

trict of  Columbia 

215  Death  of  party,  practice,  Illi- 

nois 

216  Death  of  party,  practice,  Mary- 

land 

217  Death      of     party,      practice, 

Michigan 

218  Improper  parties,  dismissal 

219  Intermarriage,    order   of   sub- 

stitution 

220  Minority,  petition  for  appoint- 

ment of  next  friend,  and  or- 
der 

221  Misnomer,  correction 


PRINCIPLES 

177  Legal  and  equitable  title 

Actions  on  contracts  must  be  brought  by  or  in  the  name  of 
all  of  the  parties  in  whom  is  vested  the  legal  interest  in  the 

57 


58  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

subject  matter  of  the  contract.^  So  in  ex  delicto  actions,  if 
an  injury  is  done  to  property,  the  remedy  must  be  sought  in 
courts  of  common  law  by  some  person  having  an  estate  in  the 
property,  legal  or  equitable,  which  the  law  recognizes.-  The 
equitable  owTier  of  a  chose  in  action  has  a  right,  by  virtue  of 
his  ownership,  to  bring  an  action  at  law  as  use  plaintiff  in 
the  name  of  the  party  who  has  the  legal  title. ^ 

178  Title  or  interest,  burden  of  proof 

Where  an  action  on  a  contract  is  brought  by  several  persons, 
they  must  prove  their  right  to  sue  as  at  common  law,  unless 
they  sue  as  partners.'* 

179  Name,  legal 

In  the  absence  of  statute,  parties  to  the  litigation  should  be 
designated  by  name  and  not  merely  by  description  of  the  per- 
son; but  the  failure  to  so  designate  a  defendant  must  be  taken 
advantage  of  on  or  before  trial.^ 

180  Name,  assumed 

A  person  may  be  sued  by  a  known  name,  and  held  upon  a 
judgment  under  that  name.^ 

181  Name,  middle 

At  common  law  the  middle  letter  is  no  part  of  the  name  of 
an  individual,  and  it  makes  no  difference  if  it  is  omitted,  wrongly 
inserted  or  is  erroneousJ 

182  Nominal  and  use  plaintiff 

An  action  upon  a  contract  expressly  made  for  the  benefit  of 
a  third  person  may  be  brought  in  the  name  of  the  contracting 

1  Dix  V.  Mercantile  Ins.  Co.,  22  s  FeH  v.  Loftis,  240  HI.  105,  109, 
m.  272,  276  (1859);  Lamed  v.  Car-       110  (1909). 

penter,  65  111.  543,  544  (1872);  Me-  6  Field  v.  Plummer,  75  Mich.  437 

Lean  County  Coal  Co.  v.  Long,  91  (1889). 

HI.    617,   618    (1879).  7  Illinois  Central  R.  Co.  v.  Hasen- 

2  Peoria  Marine  &  Fire  Ins.  Co.  V.  winkle,  232  111.  224,  228  (1908); 
Frost,  37  111.  333,  336   (1865).  Humphrey  v.  Phillips,  57   111.   135; 

3  Foreman  Shoe  Co.  v.  Lewis  &  People  v.  Dunn,  247  111.  410,  413 
Co.,  191  111.   155,  158    (1901);   Sec.  (1910). 

23,  c.  1,  Hurd's  Stat.  1909,  p.  107. 

4  Woodworth  v.  Fuller,  24  HI.  109, 
110   (1860). 


PARTIES  59 

party  for  the  beneficiarj'  's  use.^  The  real  parties  in  interest 
may  prosecute  or  defend  an  action  at  law  in  the  name  of  a 
necessary  nominal  party  against  his  protest,  upon  indemnifying 
him  against  costs  and  damages.^  The  fact  that  a  party  is  named 
as  beneficial  plaintiff,  or  the  use  of  the  words  "for  the  use  of," 
etc.,  does  not  constitute  him  a  plaintiff  in  the  case.  The  reason 
for  using  these  words  is  merely  to  protect  the  interest  of  the 
usee  against  the  nominal  plaintiff  who  is  a  necessary  party  at 
every  stage  of  the  proceeding.!*^ 

183  Nominal  and  use  plaintiff,  res  judicata 

The  bringing  of  an  action  by  the  nominal  plaintiff  and  a 
recavery  of  a  judgment  therein  is  a  bar  to  any  future  action 
by  the  party  benefited  by  that  action.  As  where  suit  is  brought 
by  highway  commissioners  on  behalf  of  their  town,  the  town- 
ship is  the  beneficial  plaintiff,  and  a  judgment  in  such  an  action 
is  a  bar  to  any  future  action  that  might  be  commenced,  either 
in  the  name  of  the  township  or  by  any  agent  thereof  for  the 
same  cause  of  action.^^ 

184  Joinder 

Parties  who  are  separately  liable  for  a  portion  of  an  indebted- 
ness cannot  be  joined  in  one  action  upon  the  entire  debt.^^ 

185  Nonjoinder 

The  nonjoinder  of  necessary  parties  defendant  in  actions  ex 
contractu  is  available  even  after  judgment  by  default,  where 
the  omission  to  make  the  necessary  parties  appears  on  the  face 
of  the  declaration.  13 

186  Misjoinder 

In  actions  ex  delicto  the  joinder  of  too  few  or  too  many  plain- 
tiffs is  ground  of  nonsuit  on  the  trial,  although  the  misjoinder 

8  Illinois  Fire  Ins.  Co.  v.  Stanton,  12  Union  Drainage  District  v. 
57  HI.  354,  356  (1870).                            Highway     Commissioners,     220     111. 

9  Sumner  v.  Sleeth,  87  111.  500,  503       176,  180  (1906). 

(1877).  13  Cummings  v.  People,  50  111.  132. 

loHobson  V.  McCambridge,  130  134,  135  (1869);  International  Ho- 
111.  367,  375,  376  (1889);  McCor-  tel  Co.  v.  Flynn,  238  111.  636,  644 
miek  v.  Fulton,  19  111.  570  (1858).         (1909). 

11  Highway  Commissioners  v. 
Bloomington,  253  111.  164,  167 
(1912). 


60  ANNOTATED   FORMS    OF    PLEADING   AND   PRACTICE 

of  defendants  is  immaterial. ^^  The  nonjoinder  of  persons  in- 
terested with  the  plaintiff  can  be  taken  advantage  of  by  plea 
in  abatement,  or  in  mitigation  of  damages.  By  omitting  to 
plead  in  abatement,  a  defendant  consents  to  a  severance  of  the 
causes  of  action  and  authorizes  the  plaintiff  to  have  judgment 
for  his  aliquot  share  for  the  damages  sustained.  This  rule  has 
no  application  to  a  statutory  penalty  which  in  its  nature  is 
indivisible.15 

187  Withdrawal 

In  all  proceedings  commenced  by  voluntary  petition,  any  of 
the  subscribers  may  withdraw  their  names  as  petitioners  at  any 
time  before  final  action  is  taken  upon  the  petition.!'^ 

PERSONS,  CORPORATIONS  AND  ASSOCIATIONS 

188  Administrator  de  bonis  non 

An  administrator  de  bonis  7ion  can  sue  for  or  upon  only  such 
of  the  goods  and  chattels  of  the  intestate  as  remain  unadmin- 
istered  in  specie,  and  upon  such  of  the  debts  as  remain  unpaid. 
His  authority  does  not  extend  to  assets  which  have  been  admin- 
istered, whether  properly  or  improperly. ^'^ 

189  Assignee 

An  assignee  of  a  chose  in  action  cannot,  at  common  law,  main- 
tain an  action  thereon  in  his  own  name.^^  In  Michigan  such 
an  assignee  may  sue  in  his  own  name  or  in  the  name  of  the 
assignor.  19 

190  Corporations 

The  corporation  and  not  its  agent  must  sue  on  the  contract 
made  for  its  benefit  through  an  agent,  although  there  is  a  writ- 

14  Murphy  v.  Orr,  32  111.  489,  166,  167  (1910);  Kinsloe  v.  Pogue, 
492    (1863);    Snell   v.   De  Land,   43       213  111.  302,  306   (1904V 

111.    323,    32.5    (1867);    Chicago    v.  it  Newhall  v.  Tuiney,  14  111.  338, 

Speer,    66    111.     154,     155     (1872);  339   (1853). 

Siegel,  Cooper  &  Co.  v.  Schueek,  167  is  McLean     County    Coal    Co.    v, 

111.  522,  525   (1897).  Long,  91  111.  617,  618. 

15  Edwards  v.  Hill,  11  111.  22,  23,  is  Park  v.  Toledo,  C.  S.  &  D.  E. 
24   (1849).  Co.,  41  Mich.  352,  355    (1879). 

16  Malcomson   v.    Strong,   245   111. 


PARTIES  61 

ten  promise  to  pay  the  agent  eo  nomine. -^     Corporations  may 
be  sued  for  tort  the  same  as  individuals.-^ 

191  Counties 

At  common  law,  counties  can  neither  sue  nor  be  sued ;  there- 
fore, actions  by  or  against  them  depend  upon  some  special 
statute.22  In  Illinois,  under  special  statutory  provisions,  all 
local  or  transitory  actions  against  counties  must  be  commenced 
or  prosecuted  in  the  circuit  court  of  the  county  against  which 
the  action  is  brought;  and  all  actions  commenced  by  counties 
must  be  brought  in  the  county  in  which  the  defendant  resides.^^ 

192  Executors 

The  title  to  goods,  chattels  and  choses  in  action  vests  in  the 
executor  upon  his  appointment  for  the  use  of  the  creditors, 
distributees  and  legatees,  and  he  alone  can  sue  in  trover,  replevin, 
or  other  appropriate  remedy  for  the  recovery  of  personal  prop- 
erty, or  for  its  injury.-^ 

193  ForeigTi  corporations 

It  is  not  necessary  that  a  foreign  corporation  should  qualify 
as  such  to  enable  it  to  bring  suit  upon  a  cause  of  action  which 
has  not  arisen  from  an  unauthorized  transaction  of  business  in 
the  state.25  If  such  a  corporation  has  a  good  cause  of  action, 
it  may  sue  in  Illinois,  regardless  of  whether  or  not  it  can  main- 
tain an  action  for  the  same  cause  of  action  in  another  state. ^^ 

194  Husband  and  wife 

A  wife  cannot  sue  her  husband  at  common  law.  In  Illinois 
a  married  woman  cannot  sue  her  husband  in  an  action  at  law 

20  Southern  Life  Ins.  &  Trust  Co.  26  Alpena  Portland  Cement  Co.  v. 
V   Gray.  3  Fla.  262,  366  (1850).  Jenkins  &  Eeynolds  Co.,  244  111.  354, 

21  Harlem  v.  Emmert,  41  111.  319,  361  (1910);  Lehigh  Portland  Ce- 
323  (1866);  Kankakee  &  Seneca  E.  ment  Co.  v.  McLean,  24.5  111.  326, 
Co.  V.  Horan,  131  111.  288,  307  333  (1910);  Sec.  6,  c.  32,  Kurd's 
(1890).  Stat.   1909;    Finch  &  Co.  v.   Zenith 

22  Schuyler  County  v.  Mercer  Furnace  Co.,  245  111.  586,  591,  592 
County,  4  Gilm.  20,  23    (1847).  (1910);  Simpson  Fruit  Co.  v.  Atchi- 

23  Sec.  6,  Act  of  Jan.  3,  1827  son,  T.  &  S.  F.  Ky.  Co.,  245  111.  596, 
(1833  Eev.  Laws,  p.  139.)  597   (1910). 

24  McLean  County  Coal  Co.  v.  26  Finch  &  Co.  v.  Zenith  Furnace 
Long,  91  111.  619.  Co.,  245  111.  594. 


62  ANNOTATED  FORMS  OF   PLEADING  AND  PRACTICE 

except  where  her  separate  property  is  involved.^^    Husband  and 
wife  may  sue  one  another  in  Mississippi. ^s 

195  Insane  persons 

At  common  law  an  action  upon  a  contract  made  by  an 
insane  person  could  only  be  brought  in  his  own  name.-^  In 
Illinois  this  rule  applies  until  a  conservator  is  appointed.  After 
the  appointment  of  a  conservator  suits  must  be  brought  in  his 
name.^*^ 

196  Joint  and  several  obligees  and  obligors,  plaintiffs 

All  living  obligors  at  the  time  suit  is  about  to  be  commenced, 
must  join  in  an  action  upon  an  obligation  which  is  expressly 
made  to  two  or  more  persons,  notwithstanding  the  defeasance 
may  provide  for  its  discharge  upon  the  payment  of  a  sum  of 
money  to  one  of  them,  because,  the  legal  interest  in  such  a  case 
is  joint  and  not  several.^^  The  legal  interest  of  a  party  in  a 
contract  is  not  to  be  confounded  with  the  benefit  to  be  derived 
from  or  under  it.  It  is  the  legal  interest  and  not  the  benefit  in 
the  contract  which  determines  in  whose  name  an  action  on  a 
contract,  whether  by  parol  or  under  seal,  should  be  brought. 

197  Joint  and  several  obligees  and  obligors,  defendants 

In  actions  upon  joint  obligations,  all  living  joint  obligors, 
or  promisors  must  be  made  defendants.^^  On  a  joint  and  sev- 
eral obligation,  one  may  be  sued,  or  all,  but  not  an  inter- 
mediate number.  In  case  of  a  joint  obligor 's  death  the  survivors 
may  be  sued  as  if  they  alone  were  primarily  liable. ^^  Parties 
to  a  contract  which  is  void  as  to  them  and  valid  as  to  others 
should  not  be  joined  in  an  action  on  the  contract  with  those 
who  are  liable  thereon.^* 


27  Chestnut    v.    Chestnut,    77    111.  32  Brooks    v.    Mclntyre,    4    Mich. 
346,  350  (1875).  316,    317     (1856)  ;    Byers    v.    First 

28  Sec.  2518  Code  1906  (Miss.).  National    Bank,    85    111.    423,    426 

29  Chicago  &  P.  R.  Co.  v.  Munger,  (1877). 

78  111.  300,  301  (1875^.  33  Cnmmings  v.  People,  50  111.  132, 

30  See.    11.    c.    86,    Hnrd's    Stat.  134  (1869). 

1909,  p.  1460.  3*  McLean  v.  GriswoH,  22  111.  218, 

31  International      Hotel      Co.      v.  220    (1859);    Page  v.  De  Leuw,  58 
Flynn,  238  111.  644:  Osgood  v.  Skin-  111.  85,  87   (1871). 

ner,  211  111.  229,  237  (1904). 


PARTIES  63 

198  Joint  owners 

In  actions  in  form  ex  delicto  the  joinder  of  parties  plaintiff 
depends  upon  whether  the  specific  thing,  or  the  damages  are 
sought  to  be  recovered.  If  a  recovery  of  the  particular  prop- 
erty is  sought,  all  of  the  point  owners  of  that  property  are 
necessary  parties;  if  damages  alone  are  sued  for,  a  part  of  the 
owners  alone  may  sue  at  one  time  and  another  part  may  sue 
at  another  time,  each  recovering  according  to  their  propor- 
tionate interest  in  the  property  damaged,  lost,  or  destroyed, 
unless  the  nonjoinder  of  all  of  the  owners  of  the  property  is 
pleaded  in  abatement.^^ 

199  Joint  wrongdoers 

A  party  who  is  injured  by  joint  and  independent  acts  of 
several  persons  may  either  elect  to  sue  any  one  of  them,  or 
all  or  any  number  of  them  jointly,  and  recover  against  as  many 
as  the  proof  shows  are  liable ;  ^•^  or  after  suit  has  been  brought 
against  all  of  the  wrongdoers,  he  may  exercise  such  an  election 
at  any  time  before  judgment  by  dismissing  the  suit  against  any 
of  them.^'^  A  release  or  a  discharge  of  one  joint  wrongdoer, 
however,  is  a  release  of  the  other,  on  the  principle  that  there  can 
be  but  one'  recovery  or  satisfaction.^®  The  common  law  rule 
that  all  persons  who  are  liable  for  the  same  tort  may  be  joined 
in  one  action,  does  not  apply  to  wrongdoers  who  are  indirectly 
liable,  unless  changed  by  statute.^^ 

200  Legatees 

A  legatee  cannot  maintain  an  action  for  the  recovery  of,  or 
for  an  injury  to  personal  property  which  has  been  willed  to 
him,  but  he  must  do  so  through  the  executor. ■^^ 


36  Johnson   v.   Eiehardson,    17   111.  37  Nordhaus    v.    Vandalia   E.    Co., 

302,  303  (1855).  242  HI.  166,  174. 

36  Nordhaus   v.    Vandalia   R.    Co.,  38  Moonev  v.  Chicago,  239  Til.  414, 

242   111.   166.   174    (1909);    Tandrup  422,423  (1909). 

V.     Sampsell,     234     111.     526,     530  39  Franklin  v.  Frey,  106  Mich.  76, 

(1908);   Parmelee  Co.  v.  Wheelock,  78   (1895). 

224  111.  194,  200  (1906)  ;  Severin  V.  40  McLean    County    Coal    Co.    v. 

Eddy,  52  111.  189,  191  (1869).  Long,  91  HI.  618  et  seq. 


64  ANNOTATED  FORMS  OF   PLEADING  AND   PRACTICE 

201  Minors 

A  praecipe  may  be  executed  and  process  may  be  sued  out  in 
the  name  of  minors  before  the  appointment  of  prochein  amy 
or  guardian.^  ^ 

202  Nonresidents 

A  nonresident  cannot,  against  his  objection,  be  made  a  party 
to  a  proceeding  in  the  nature  of  an  interpleader,  by  personal 
service  upon  him  beyond  the  jurisdiction  of  the  court.*^ 

203  Partners 

In  ex  contractu  actions  all  ostensible  and  publicly  known 
members  of  the  firm  at  the  time  of  the  making  of  the  contract 
to  be  sued  upon  must  be  joined  as  defendants. ^^  The  same  is 
true  in  cases  of  a  partnership  consisting  of  an  infant  and  an 
adult,  as  such  a  partnership  is  not  void.'*^  It  is  optional  for  the 
plaintiff  to  join  or  omit  secret  or  nominal  partners  unless  he 
knows,  or  has  notice,  of  their  existence  and  by  the  omission  to 
join  them,  the  defendant  is  deprived  of  presenting  a  defense 
in  the  nature  of  set  off  or  recoupment.^^ 

204  Receivers 

The  receivers  of  corporations  alone  are  proper  parties  defend- 
ant to  an  action  for  personal  injuries  resulting  while  they  are 
in  control  and  possession  of  the  corporate  properties.^^  Re- 
ceivers may  be  sued  as  joint  wrongdoers.*'^ 

205  Religious  organizations 

Under  former  Illinois  law  religious  societies  could  sue  only 
by   their   trustees.''^     The    present    laws    relating   to    religious 

41  Stumps  V.  Kelley,  22  111.  140,  45  Lasher  v.  Colton,  225  111.  234, 
141    (1859).                                                 237,  239  (1907);  Page  v.  Brant,  18 

42  Dexter  v.  Liehliter,  24  App.  D.      111.  38. 

C.  222,  227  (1904);  See.  1531,  Code  46  Henningr   v.    Sampsell,    236   111. 

(D.  C).  375,  381    (1908). 

43  Page  V.  Brant,  18  111.  37,  38  47  Tandrup  v.  Sampsell,  234  111. 
(1856)  ;  Goggin  v.  O'Donnell,  62  111.  526,  533   (1908). 

66,  67   (1871);  Blackwell  v.  Eeid  &  48  Ada    Street    Methodist    Episco- 

Co.  41  Miss.  102  (1866).  pal  Church  v.  Garnsey,  66  111.  132, 

44  0sborn  v.   Farr,  42   Mich.   134  133   (1872). 
(1879). 


PARTIES  65 

organizations  require  suits  by  and  against  them  to  be  brought 
in  the  name  under  which  they  are  organized.^^ 

206  School  districts,  discontinued 

Upon  the  discontinuance  of  a  school  district  in  Illinois,  an 
action  for  a  breach  of  contract  may  be  brought  against  the 
board  of  education  of  the  township  of  the  discontinued  dis- 
trict.50 

207  State  board  of  health 

The  State  Board  of  Health  is  a  branch  of  the  executive 
department  of  the  government;  it  is  neither  a  corporation,  an 
association,  nor  an  individual.^^ 

208  Townships  and  highway  commissioners 

Incorporated  townships  may  sue  in  their  corporate  names.'^'^ 
The  institution  of  an  action  in  the  name  of  the  highway  com- 
missioners in  place  of  that  of  the  township  is  a  waivable  irregu- 
larity, and  an  objection  on  that  ground  comes  too  late  when 
first  urged  in  the  reviewing  court.^^ 

209  Voluntary  associations 

At  common  law  all  of  the  members  of  a  voluntary  association 
should  be  joined  as  parties  to  an  action.  The  name  of  a  society 
cannot  be  used  in  suing.  On  the  principle  of  waiver,  however, 
a  voluntary  association  is  bound  by  a  judgment  which  has  been 
rendered  against  its  society  name,  where  the  association  assumed 
a  corporate  name,  where  it  has  exercised  corporate  powers,  and 
where  it  has  been  sued  and  has  been  served  as  a  corporation 
and  the  want  of  proper  parties  is  urged  for  the  first  time  on 
appeal  or  in  a  collateral  proceeding.^^    A  person  who  has  been 

*9  Zion  Church  v.  Mensch,  178  111.  53  Highway       Commissioners       v. 

225    (1899);    Church    of    Christ    v.  Bloomington,  253  111.  167;  Par.  46, 

Christian     Church,      193     111.      144  c.  139,  Kurd's  Stat.  1909. 

(1901).  54  Schuetzen    Bund    v.    Agitations 

00  Chalstran  V.  School  District,  244  Verein,  44   Mich.   313,  316    (1880); 

111.   470,   479    (1910);    Sec.   44,   art.  Fitzpatrick  v.  Rutter,   160   III.   282, 

3.  School  law  (Kurd's  Stat.  1908,  p.  2S6    (1896);    Ada  Street   Methodist 

1920).  Episcopal  Church  v.  Garnsey,  66  111. 

61  People   V.    Dunn,    255    111.    289,  134;    Warfield-Pratt-Howell    Co.    v. 

291   (1912).  WilUamson,  233  lU.  487,  496  (1908). 

52  Morris  v.  School  Trustees,  15  111. 
266,  270  (1853), 


66  ANNOTATED   FORMS   OP   PLEADING   AND   PRACTICE 

made  a  member  of  a  voluntary  association  without  his  authority 
or  illegally,  may  be  omitted  as  a  party  to  the  action.^^  The 
Grand  Lodge  of  Illinois  Odd  Fellows  must  sue  and  be  sued  in 
the  name  of  "The  Grand  Lodge  of  the  State  of  Illinois,  of  the 
Independent  Order  of  Odd  Fellows;"  subordinate  lodges  must 
sue  and  be  sued  in  the  name  of  ' '  The  trustees  of  ....  Lodge 
No ,  Independent  Order  of  Odd  Fellows, ' '  ^^ 

PEACTICE 

210  Addition  and  substitution  of  plaintiff 

Necessary  parties  plaintiff  may  be  added  to  an  action  by 
amendment  after  verdict  upon  cross  motion  to  a  motion  to  dis- 
miss for  want  of  proper  parties.^'^  The  addition  of  a  necessary 
party  plaintiff  to  an  action  is  neither  the  commencement  of  a 
new  suit  nor  the  statement  of  a  new  cause  of  action  within  the 
meaning  of  the  statute  of  limitations.^^  Thus,  the  cause  of 
action  is  in  no  way  affected  by  making  the  proper  beneficiary 
plaintiff  to  an  action  upon  a  benefit  insurance  certificate  in 
place  of  a  person  who  was  improperly  made  plaintiff.^^ 

211  Bankruptcy,  petition  for  substitution  of  trustee 

®°  And  now  comes ,  in  his  own  proper  person,  by 

,  his  attorney,  and  shows  to  the  court  here  that  he 

has  been  duly  appointed  the  trustee  in  bankruptcy  of  the  above 

named by  the  district  court  of  the  United  States 

for  the district  of ,  and  by  leave  of 

the  court  here  files  in  this  case  a  certified  copy  of  the  adjudica- 
tion in  bankruptcy  of  the  said ,  and  also  a  certified 

55  Boyd  V.  Merril,  52  111.  151,  153  by  the  title  of  the  case,  as  a  cap- 
(1869).  tion,  thus: 

56  Marsh  v.  Astoria  Lodge,  27  111.  state  of ,| 

421,  425   (1862);  Laws  1849,  p.  46  ••• county,  (/s. 

/Til  \  ^  In  the court  of county 

V-^"'.'-  Tothe  term.l9.... 

67  Hougland    v.    Avery    C.    &    M "I 

Co.,  246  lU.  609,  619    (1910);   Sec.  ^Plaintiff, 

1,  c.  7,  Kurd's  Stat.   1909,  p.   154;       ! 

Sec.   39,    Practice   act    1907    (111.);  Defendant.    J 

Malleable  Iron  Eange  Co.  v.  Pusey,  It    is    customary    to    entitle    all 

244  111    184    196   (1910)  pleadings  on  behalf  of  the  plaintiff 

58Hougland    v.    Avery'  C.    &    M.  ^^  ^  ,^,/-  „C,f '  ^f  f  P^^^^lff! 

r      OAR  Til    «ifi  ^^  behalf  of  the  defendant  as  C  D 

;'o  T>       u          T^  •  r..        *    TT  ats.    A    B.      The    declaration,    the 

Q-.r^ffos  ""■    ^°'^^*^    ""^    ^°°°'''  replication,  the  surrejoinder  and  the 

255  III.  128.  surrebutter    should    be    entitled    as 

eoAll  forms  of  an  action  should  A  B  v.  C  D;  whereas  the  plea,  the 

be   preceded   by  the   venue,   by   the  rejoinder  and  the  rebutter  as  C  D 

name  and  the  term  of  the  court,  and  ats.  A  B. 


■  (Form  of  Action) 


PARTIES  67 

copy  of  his  appointment  as  such  trustee,  and  also  a  certified 
copy  of  the  assig^nment  to  him  of  assets  and  effects  of  said 
bankrupt,  and  prays  the  court  here  that  he  may  be  substi- 
tuted in  the  place  of  the  said as  plaintiff  herein, 

and  that  he  may  be  allowed  to  prosecute  this  suit  as  plaintiff 

in  place  and  stead  for  the  use  of , 

to  whom  he  has  sold  and  assigned  the  claim  and  cause  of  action 
in  this  case. 


Trustee  of 

Bankrupt. 

212  Change  of  defendant,  petition  and  order 

To  the  honorable,  the  judge  of  said  court: 

Your  petitioner,  the  defendant  in  the  above  entitled  cause  rep- 
resents unto  your  honor  that  heretofore,  to  wit,  on  or  about 

,  19 .  . ,  the  corporate  name  of  your  petitioner  was 

changed    by    proper    amendment    of    its    charter    to    that    of 
,  which  amendment  has  been  duly  filed  in  the  state 

of 

Your  petitioner  therefore  prays  that  the  name  of  the  defend- 
ant be  now  changed  on  the  docket  and  the  pleadings  be  so 
amended  to  that  of  the  present  name  of  the  defendant  corpora- 
tion, to  wit, 

As  is  in  duty,  etc. 

Attorney  for  petitioner. 

Ordered,  this   day  of ,  19 .  . ,  by  the  court 

of that  the  docket  be  changed  and  the  pleadings  be 

amended  as  prayed. 


«i 


213  Death,  suggestion  of,  necessity- 
It  is  not  necessary  to  suggest  the  death  of  a  beneficiary  who 

is  not  a  party  to  the  suit  and  whose  death  does  not  affect  the 
suit  in  any  way.^^ 

214  Death  of  party  practice,  District  of  Columbia 

Now  comes  the  plaintiff  by    his  attorney  and 

suggests  to  the  court  the  death  of  the  defendant  

on  the day  of and  further  suggests  that  let- 
ters of  administration  on  the  estate  of  said were, 

on  the day  of issued  to who 

has  qualified  as  administrator  of  said  estate,  plaintiff  therefore 
suggests  that  the  said in  his  capacity  as  adminis- 

«i  German  Union  Fire  Ins.  Co.  v.  82  Reichert  v.  Missouri  &  Illinois 

Cohen,  114  Md.  130   (1910).  Coal  Co.,  231  111.  238,  246  (1907). 


68 


ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 


trator  of  the  estate  of deceased  be  made  a  party 

defendant  to  this  cause. 


Attorney  for  plaintiff. 


215  Death  of  party,  practice,  Illinois 

Comes  now  the ,  executor  and  trustee  under  the 

last  will  and  testament  of ,  deceased,  and  suggests 

to  the  court  the  death  of  the  said  ,  who  died  on 

,  1.  . .,  and  that  the  undersigned,    

has  been  appointed   and  has  duly   qualified   as  executor  and 

trustee  under  the  last  will  and  testament  of  said , 

and  therefore  asks  that  the  undersigned,    ,  as 

executor  and  trustee  under  the  last  will  and  testament  of  .... 

,  deceased,  be  substituted  as  defendant  in  the  above 

entitled  cause. 


Attorneys  for 


216  Death  of  party,  practice,  Maryland 

The  plaintiff  by   his  attorney  suggests  to  the 

court  that  pending  this  action  one  of  the  defendants 

has  departed  this  life  leaving  a  will  and  appointing 

and executors,  and  that  letters  testamentary  have 

been  granted  upon  his  personal  estate  to  the  said 

and  ;  wherefore,  the  plaintiff,  by  his  attorney, 

moves  that  the  said and executors  of 

the  estate  of  ,  deceased,  be  made  parties  defend- 
ant in  the  above  entitled  cause  and  that  summons  directed  to 
them  may  be  issued  from  this  honorable  court. 


Attorney  for  plaintiff. 
Prayer  of  petition  granted,  and  let  summons  issue  as  prayed. 

Judge. 


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PARTIES  69 

217  Death  of  party,  practice,  Michigan 

Affidavit 

of being  duly  sworn  deposes  and 

saj-s  that ,  the  sole  plaintiff  in  this  action,  the  cause 

of  which  does  by  law  survive,  departed  this  life  on  the 

day  of   last,  intestate ;  that  on  the   day  of 

this  deponent  was  duly  appointed  sole 

administratrix  of  the  said   deceased,  by  order  of 

the court  for county  in  said  state ; 

and  that  this  deponent  therefore  praj's  that  the  death  of  the 

said  may  be  suggested  upon  the  record  of  this 

cause,  and  that  she,  this  deponent,  may  be  allowed  to  prosecute 
this  suit  as  such  administratrix. 


Subscribed,  etc. 

Order 

On  reading  and  filing  the  affidavit  of   filed  in 

the  above  entitled  cause  and  it  appearing  that  said  plaintiff, 

died  intestate  on  the day  of 

last  and  that was  appointed  sole  administratrix  of 

the  estate  of  deceased  by  order  of  the  judge  of 

probate  of county  in  said  state  on  the 

day  of 

Therefore,  on  motion  of  attorney  for  plaintiff, 

it  is  ordered  that said  administratrix  may  appear 

and  take  upon  herself  the  prosecution  of  this  suit  in  her  capacity 
as  administratrix  of  said  estate,  as  provided  by  the  laws  of  said 

state  within days  after  service  of  notice  of  this 

order  upon  the  defendant  in  said  cause  or  its  attorney. 

Notice 
To attorney  for  defendant. 

Please  take  notice  that  an  order  to  revive  suit  by 

administratrix  of  the  estate  of deceased,  of  which 

the  attached  hereto  is  a  copy  was  duly  entered  by  order  of  said 

court  in  session  held  at  the  court  house  in  the    of 

in  said  county  on  this day  of ;  which 

order  was  based  on  the  affidavit  of    ,  a  copy  of 

which  is  hereto  attached,  and  the  records  and  files  in  said  cause ; 

and  that  said  suit  is  duly  revived  in  the  name  of 

administratrix  of  the  estate  of ,  deceased,  plaintiff 

against ,  defendant,  in  accordance  with  said  order 

of  said  court  and  by  virtue  of  the  statute  in  such  ease  made 
and  provided. 

Dated,  etc. 


Plaintiff's  attorney. 
(Attach  affidavit  of  service) 


70  ANNOTATED   FORMS   OP   PLEADING   AND  PRACTICE 

218  Improper  parties,  dismissal 

A  motion  to  dismiss  a  suit  for  want  of  proper  parties  is  appro- 
priate  if  the  defect  appears  on  the  face  of  the  proceedings.^s 
The  dismissal  from  a  suit  of  an  improper  party  is  not  the  com- 
mencement of  a  new  action  as  to  the  remaining  party .*5* 

219  Intermarriage,  order  of  substitution 

Upon  suggestion  of  attorneys  for  the  plaintiff  that  the  plain- 
tiff herein  has  intermarried  since  the  institution  of  the  above 

entitled  case,  and  that  her  name  is  now ,  it  is  ordered  by 

the  court  that  the  name  of be  substituted  in  lieu  of 

as  the  name  of  the  plaintiff  herein. 

220  Minority,  petition  for  appointment  of  next  friend,  and 

order 

The  petition  of   of  the  city  of    , 

county  of and  state  of  Michigan,  an  infant  under 

the  age  of  twenty-one  years,  to  wit,  of  the  age  of years, 

respectfully  shows  that  he  is  about  to  commence  a  suit  in  the 

court  for  the  county  of against 

,  a  corporation  organized  under  the  laws  of  the  state 

of  Michigan,  and  doing  business  in  the  city  of , 

to  recover  damages  for  personal  injuries  sustained  by  him 
while  in  the  employ  of  said  defendant  at  its  plant  in  said  city, 

on  the day  of ,  19 .  . ,  while  wheeling  castings 

in  a  wheelbarrow,  and  coming  in  contact  with  an  unguarded 
emery  wheel,  severely  injuring  the  back  of  his  right  hand  to 
such  an  extent  that  he  has  lost  the  use  of  two  fingers  and 
greatly  impairing  the  use  of  the  hand. 

Your  petitioner  respectfully  prays  that  inasmuch  as  he  is 

an  infant,  as  above  stated,  his  mother,    ,  of  the 

city  of  ,  county  of  and  state  of  Michi- 
gan, a  competent  person,  may  be  appointed  to  prosecute  said 
suit  for  your  petitioner,  as  his  next  friend,  according  to  the 
statute  in  such  case  made  and  provided. 

Dated,  etc. 

In  presence  of 


I  hereby  consent  to  become  the  next  friend  of  •••.••• 
in  a  suit  to  be  commenced  as  stated  in  the  above  petition. 
Dated,  etc. 


63  Conway  v    Sexton,  243  111.   59,  C4  Dickson  v.  Chicag-o,  B.  &  Q.  R. 

62   (1909).        ■  Co.,  81  111.  215,  216,  217   (1876). 


PARTIES  71 

(Venue) 

of  the  city  of ,  county  of 

and  state  of  Michigan,  being  duly  sworn,  deposes  and 

says  that  in  the  foregoing  jDetition  named, 

did  on  the day  of ,  duly  sign  said  petition 

in  the  presence  of  this  deponent.    Deponent  further  says  that 

,  of  tlie  city  of ,  county  of 

and  state  of  Michigan,  also  in  the  prayer  of  said  petition  men- 
tioned, did  at  the  same  time  sign  the  consent  or  agreement 

thereunto  written,  as  the  next  friend  of  the  said , 

in  the  presence  of  this  deponent. 


Subscribed,  etc. 


Order 


On  reading  and  filing  the  foregoing  petition  duly  verified, 

it  is  ordered  that   ,  of  the  city  of   , 

mentioned  in  said  petition  be,  and  she  is  hereby  appointed  as  the 

next  friend  of ,  in  a  suit  to  be  commenced  as  stated 

in  the  above  petition. 

Dated,  etc. 


Circuit  Judge. 

221  Misnomer,  correction 

After  a  plea  of  misnomer  in  abatement  and  a  demurrer  thereto, 
the  plaintiff  may  be  allowed  to  withdraw  his  demurrer  and  to 
amend  his  summons  and  declaration  or  petition  to  correct  the 
misnomer.^ 5  The  mere  change  of  the  description,  or  the  cor- 
rection of  a  defect  in  the  name,  of  a  party  defendant,  does  not 
make  it  a  new  cause  of  action  where  the  identity  of  the  action 
is  not  thereby  destroyed.^*^ 

65  Heslep  V.   Peters,   3    Scam.   45,  ee  Wileke  v.  Henrotin,  241  111.  169, 

46  (1841).  175   (1909). 


CHAPTER   VIII 


COSTS 


IN  GENERAL 

§§ 

222  Taxing  costs 

223  Administrators  and  executors 
NECESSITY    OF    SECURITY 

224  Nominal  and  use  plaintiff 

225  Nonresidents,  Florida 

226  Nonresidents,  Illinois 

227  Nonresidents,  Michigan 

228  Nonresidents,  Mississippi 

229  State 

230  Writ  of  error 

PRACTICE 

231  District  of  Columbia,  motion 

for  costs 

232  Illinois,  application,  time 

233  Illinois,    motion    to    dismiss, 

waiver 

234  Illinois,  cross  motion,  right 

235  Maryland,  motion 

236  Michigan,  motion 

237  Michigan,  affidavits 

238  Michigan,  notices 

239  Mississippi,  motion 

240  Mississippi,  affidavit 

241  West  Virginia,  motion 


SECURITY  OR  BOND 

§§ 

242  District  of  Columbia 

243  Illinois 

244  Michigan 

245  Mississippi 

246  Virginia 

247  West  Virginia 

248  Filing 

249  Amendment 

250  Additional  bond,  affidavit,  re- 

quisites 

251  Effect 

252  Execution,  issuance 

253  Execution,  form 

POOR  PERSON 

254  District  of  Columbia,  affidavit 

255  Illinois,  rules  of  court 

256  Illinois,  motion 

257  Illinois,  affidavit  and  order 

258  Illinois,    petition    to    sue    as 

next    friend    and    as    poor 
person,  order 

259  Mississippi 

260  West  Virginia 


IN  GENERAL 

222  Taxing  costs 

The  right  to  allow  or  to  tax  costs  is  purely  statutory,  and 
costs  should  not  be  awarded  unless  it  is  authorized  by  statute. 
Statutory  provisions  which  impose  costs  are  strictly  construed.^ 


iGalpin  v.  Chicago,  249  111.  554, 
566  (1911). 


72 


COSTS  73 

223  Administrators  and  executors 

Executors  and  administrators  are  not  liable  for  costs  in  suits 
prosecuted  by  them  in  their  official  capacity,  unless  they  act 
male  fide,  or  they  are  ^ilty  of  ^oss  negligence.- 

NECESSITY  OP  SECUEITY 

224  Nominal  and  use  plaintiff 

In  actions  commenced  by  nominal  and  use  or  beneficial  plain- 
tiffs, the  person  for  whose  use  the  suit  is  brought  is  the  real 
party  who  institutes  it,  and  where  this  party  is  a  nonresident, 
a  bond  for  costs  is  required  ;^  and  where  the  use  or  beneficial 
plaintiff  is  a  resident,  no  security  for  costs  is  necessary,  although 
the  nominal  plaintiff  is  a  nonresident.'* 

225  Nonresidents,  Florida 

No  formal  security  for  costs  is  required  in  Florida.  In  rare 
cases,  where  the  financial  responsibility  of  a  party  is  doubtful, 
the  clerk  of  a  court  may  require  a  small  amount  of  actual  money 
to  be  deposited  with  him  at  the  time  of  the  commencement  of 
the  suit  to  stand  as  security  for  costs.  When  that  amount  is 
exhausted  by  the  fees  charged  in  the  ease  a  further  sum  or  sums 
may  be  obtained  as  a  deposit,  from  time  to  time,  until  the  entire 
costs  have  been  covered. 

226  Nonresidents,  Illinois 

Nonresident  persons  who  are  about  to  institute  a  suit,  or  non- 
resident beneficiaries  for  whose  use  a  suit  is  about  to  be  com- 
menced, are  required  to  furnish  security  for  costs  in  all  com- 
mon law  actions,  in  actions  on  official  bonds,  in  actions  on 
executor's,  administrator's  and  guardian's  bonds,  and  in  actions 
on  penal  bonds.^ 

227  Nonresidents,  Michigan 

In  Michigan  a  defendant  is  secured  against  costs  by  an  en- 
dorsement on  the  writ  or  process  of  the  name  of  the  attorney, 

2  Burnap  v.  Dennis,  3  Seam.  478,  *  Caton  v.  Harmon,  1  Scam.  581 
483  (1842);  Selby  v.  Hutchinson,  (1839);  Smith  v.  Eobinson,  supra; 
4  Gilm.  319,  326   (1847);  Sec.  8,  c.      Sec.  1,  c.  33,  Hurd's  Stat.  1909. 

33,  Hurd's  Stat.   1909,  p.  616.  s  Sec,  1,  c.  33,  Hurd's  Stat.  1909, 

3  Smith  V.  Eobinson,  11  111.   119,      p.  615. 
120   (1849). 


74  ANNOTATED  FORMS  OP   PLEADING   AND  PRACTICE 

solicitor,  or  other  person  to  whom  the  writ  is  issued.^  In  ease 
an  endorser  of  a  writ  or  declaration  leaves  the  state,  the  coui-i 
may  require  new  security  to  be  given,  and  which,  when  given, 
relates  back  to  the  commencement  of  the  suitJ 

228  Nonresidents,  Mississippi 

It  is  discretionary  with  the  clerk  whether  or  not  security  for 
costs  shall  be  given;  and  this  applies  to  residents  as  well  as 
nonresident  parties. 

229  State 

A  statutory  provision  requiring  security  for  costs  has  no 
application  to  the  state.^ 

230  Writ  of  error 

A  nonresident  who  prosecutes  a  writ  of  error  is  required  to 
give  security  for  costs.^ 

PEACTICE 

231  District  of  Columbia,  motion  for  costs 

10  Now  comes  the  defendant,  by  his  attorney,  and  moves  the 
court  that  an  order  issue  requiring  the  plaintiff  to  file  security 
for  costs,  for  the  reason  that  the  said  plaintiff  is  a  nonresident 
of  the  District  of  Columbia. 

Attorney  for  defendant. 
(Add  notice  to  call  up  motion) 

232  Illinois,  application,  time 

A  motion  to  require  security  for  costs  should  be  made  before 
answer  or  plea  and  the  trial  of  a  case.^i 

233  Illinois,  motion  to  dismiss,  waiver 

Formerly  a  motion  to  dismiss  for  want  of  security  for  costs 
in  a  case  of  a  nonresident  plaintiff  was  considered  to  be  in  the 

6  Parks  V.  Goodwin,  1  Dong.  56,  57  »  Eipley  v.  Morris  2  Gilm.  381, 
fMich    1843)  382,  383    (1845);   Roberts  v.   Fahs, 

7  (9993),  G.  L.  1897  (Mich.).  32  111.  474,  475   (1863). 

8  People   V.    Pierce,    1    Gilm.    553,  lo  See  Section  2JI1,  Note  60 

555    (1844)-    Sec.   1,  c.   33,  Hurd's  n  Widmayer  v.  Davis,  231  111.  42, 

Stat.    1909.'  47   (1907). 


COSTS  75 

nature  of  a  plea  in  abatement,  and  if  the  motion  was  not  made 
before  pleading  to  the  merits,  the  right  to  dismiss  for  lack  of 
security  was  deemed  to  have  been  waived.^-  The  present  statute 
provides  that  the  right  to  require  security  for  costs  shall  not 
be  waived  by  any  proceeding  in  the  cause.  It  is  held  accord- 
ingly that  the  right  to  insist  upon  security  for  costs  is  not  waived 
by  pleading  to  the  action.i^  The  failure,  however,  to  give 
security  for  costs  must  be  urged  by  a  motion  to  dismiss,  or  the 
objection  is  waived.^* 

234  Illinois,  cross  motion,  right 

Upon  a  motion  to  dismiss  the  suit  for  want  of  security  for 
costs,  the  plaintiff  may  make  a  cross  motion  for  leave  to  file 
the  security,  and  the  court  may  allow  the  cross  motion  and 
overrule  the  motion  to  dismiss. ^^ 

235  Maryland,  motion 

The  defendant  by attorney  move  that  a  ' '  Rule 

Security  for  Costs"  be  laid  upon  the  plaintiff,  the  said  plaintiff 
being  a  nonresident  of  the  state  of  Maryland. 


Attorney  for  defendant. 
Service  of  copy  admitted,  etc. 

236  Michigan,  motion 

Now  comes  the  above  named  defendant  by  ,  his 

attorney,  and  moves  the  court  now  here  for  an  order  requiring 
the  said  plaintiff  to  file  a  bond  for  security  for  costs  in  the' above 

cause,  for  the  following  reasons :  First,  because  said 

has  no  property,  real  or  personal,  out  of  which  an  execution  for 
costs  can  be  collected.  Second,  because  said  defendant  has  a 
good  defense  to  said  cause  on  the  merits.  This  motion  is 
based  upon  the  files  and  records  in  the  above  entitled  cause,  and 
upon  the  aifidavits  of hereto  attached. 

Dated,  etc. 

Defendant's  attorney. 
Business  address. 

12  School  Trustees  v.  Walters,  12      396    (1879);    Sec.  3,  c.   33,  Hurd's 
HI.    154,    158     (1850) ;    Roberts    v.      Stat.  1909,  p.  615. 

Fahs,  siipra.  is  Eichards  v.  People,  100  111.  390, 

13  Kimbark  V.  Blundin,  6  111.  App.  392    (1881);    See.   3,  c.  33,  Hurd's 
539    (1880).  Stat.  1909. 

14  Meyer  v.  Wiltshire,  92  111.  395, 


76  ANNOTATED  FORMS  OF   PLEADING   AND  PRACTICE 

237  Michigan,  affidavits 

(Venue) 

« 

being  duly  sworn  deposes  and  says  that  he  is 

of   defendant  herein,  and  that  he 

makes  this  affidavit  for  and  in  its  behalf,  having  knowledge  of 
the  facts  therein. 

Deponent  further  states  that  he  has  fully  and  fairly  stated  all 
of  the  facts  upon  which  the  defense  of  the  defendant  in  the 

above  entitled   cause   is  based,   to    ,   its  attorney 

herein,  and  after  such  statement,  as  aforesaid,  he  has  been 
advised  that  the  said  defendant  has  a  full  and  complete  defense 
thereto  upon  the  merits  thereof. 

And  further  deponent  saith  not. 


Subscribed,  etc. 

(Venue) 

being  duly  sworn  deposes  and  says  that  he  is 

the  attorney  for  the  defendant  in  the  above  entitled  cause,  that 
he  has  fully  and  fairly  investigated  all  of  the  facts  upon  which 
said  cause  of  action  is  based. 

Deponent  further  says  that  after  said  investigation  he  believes 
that  the  above  named  defendant  has  a  full  and  complete  defense 
thereto  upon  the  merits  thereof. 

And  further  deponent  saith  not. 


Subscribed,  etc. 

(Venue) 

being  duly  sworn  deposes  and  says  that 

,  the  above  named  plaintiff  is  a  resident  of  the 

of county  of ;  that  he  has  examined 

the  records  in  the  office  of  the  register  of  deeds  of  the  county 

of ,  and  of  the  county  treasurer  for  the  county  of 

and  from  such  examination  states  that  the  above 

named    has  no  real  property  in  said  county  as 

appears  by  said  records,  out  of  which  execution  for  costs  could 
be  collected  if  judgment  were  rendered  therefor. 

Deponent  further  says  that  he  has  made  diligent  search  and 
inquiry  to  ascertain  if  said  plaintiff  is  possessed  of  any  personal 
property  within  said  county,  and  after  such  inquiry  states  the 

fact  to  be  that  the  said has  no  personal  property 

within  said  county  out  of  which  an  execution  for  costs  could 
be  collected  if  judgment  were  rendered  therefor. 

And  further  deponent  saith  not,  etc. 


Subscribed,  etc. 


COSTS  77 

238  Michigan,  notice 

To  

Please  take  notice  that  on  filing  the  plea  attached  hereto,  the 
above  named  defendant  expressly  reserves  the  right  to  make  a 
motion  for  security  for  costs,  if  upon  investigation,  the  above 
named  plaintiff  is  found  to  be  not  collectible. 

Dated,  etc. 


Defendant's  attorney. 

Business  address. 

To 

Attorney  for  the  plaintiff. 

You  will  please  take  notice  that  a  motion,  a  copy  of  which  is 
hereto  attached,  has  been  filed  in  the  above  cause  and  will  be 

brought  on  for  hearing  on  the day  of , 

19 . . ,  at  the  opening  of  the  court  on  that  day,  or  as  soon  there- 
after as  counsel  can  be  heard. 

Dated,  etc. 


Business  address. 

239  Mississippi,  motion 

Comes  the  defendant,  by  attorney,  and  moves  the  court  to 
require  the  plaintiff  to  give  security  for  costs,  for  the  reasons 
set  out  in  tbe  affidavit  filed  in  support  of  this  motion. 

Defendant's  attorney. 

240  Mississippi,  affidavit 

Personally  came  before  me,  the  undersigned  (clerk  of  the 
circuit  court  of  said  county,  or  notary,  as  the  case  may  be) 

attorney  for  the  defendant,  who  makes  oath  that 

he  has  good  reason  to  believe,  and  does  believe,  that  the  plaintiff 
in  the  above  styled  cause  cannot  be  made  to  pay  the  costs  of 
the  suit  in  case  the  same  shall  be  adjudged  against  him  and 
affiant  states  that  the  defendant,  as  he  believes,  has  a  meritorious 
defense  and  that  this  affidavit  is  not  made  for  delay. 


Sworn,  etc. 

241  West  Virginia,  motion 

The  defendant  suggests  that  the  plaintiff  is  a  nonresident  of 
this  state  and  that  he  be  ruled  to  give  security  for  costs. 

p.  d. 


78 


ANNOTATED  FORMS  OP   PLEADING  AND  PRACTICE 


By  executors 

And  now  this day  of ,  . . .  . ,  the  defendants, 

the  executors  aforesaid,  by  leave  of  the  court,  suggest  that  the 
plaintiffs,  appellants,  are  nonresidents  of  the  state  of  West  Vir- 
ginia, and  that  they  be  required  to  give  security  for  costs  in  this 
case. 

SECUEITY  OR  BOND 

242  District  of  Columbia 

The   plaintiff,   and    ,   his    surety, 

appear,  and,  submitting  to  the  jurisdiction  of  the  court,  hereby 
undertake  for  themselves  and  each  of  them,  their  and  each  of 
their  heirs,  executors,  administrators,  successors,  and  assigns,  to 
make  good  all  costs  and  charges  that  the  defendant  may  be  put 
to  in  case  the  plaintiff  is  nonsuited,  or  judgment  be  given  against 

him ;  and  they  further  agree  that  such  judgment 

against  the  plaintiff  may  be  rendered  against  all  the  parties 
whose  names  are  hereto  affixed. 


Approved, ,  19 . 


Justice. 


o 


CO 


o 


•  S    O 

U 
<D 

1=1 
1^ 


243  Illinois 

I,   do  enter  myself  security  for  all  costs  which 

may  accrue  in  the  above  cause. 

Dated,  this day  of 


I  do  hereby  enter  myself  security  for  costs  in  this  cause  and 
acknowledge  myself  bound  to  pay,  or  cause  to  be  paid,  all  costs 
"  Sec.  1,  c.  33,  Hurd  'a  Stat.  1909. 


COSTS 


19 


which  may  accrue  in  this  action,  either  to  the  opposite  party  or 
to  any  of  the  officers  of  this  court  in  pursuance  of  the  laws  of 
this  state. 
Dated,  etc. 

(Seal) 

244  Michigan 

"We  hereby  become  security  for  all  costs  for  which  the  plaintiff 
may  become  liable  in  the  within  cause. 
Dated,  etc. 


245  Mississippi 

We, principals,  and sureties,  bind 

ourselves  to  pay  to defendant,  the  sum  of 

dollars,  unless  the  said  shall  pay  all  costs  which 

may  be  adjudged  against  him  in  the  suit  of  said 

against commenced  in  the  court  of 

county. 

Witness  our  hands,  this day  of 


The  foregoing  bond  approved  this day  of 


Clerk 
...D.  C. 


Long  form 

Know  all  men  by  these  presents :  that  we, ,  prin- 
cipals, and ,  sureties,  are  hereby  firmly  bound  unto 

,  sheriff  and clerk  of  the 

court  in  the  penal  sum  of dollars,  good  and  lawful 

money  of  the  United  States  for  the  payment  of  which  well  and 
truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors,  and 
assigns,  jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  this day  of 


The  condition  of  the  above  obligation  is  such,  that  whereas, 

the  above  bound   hath  commenced  a  suit  in  the 

court  of county,  for  certain  reasons 

therein  stated  against 

Now  if  the  said    shall  well  and  truly,  at  the 

determination  of  said  suit,  pay  and  satisfy  to  the  said 


80  ANNOTATED  FORMS  OF   PLEADING  AND  PRACTICE 

sheriff  and   clerk,  and  their  successors  in  office, 

all  of  the  costs  which  shall  have  accrued  therein  in  said  court, 
then  the  above  obligation  to  be  null  and  void;  otherwise  to 
remain  in  full  force  and  effect. 

(Seal) 

(Seal) 

Justification  of  surety 

I  do  solemnly  swear  that  I, ,  am  worth  the  penalty- 
stated  in  the  above  bond  over  and  above  all  legal  liabilities  and 
exemptions. 


Sworn,  etc. 

Piled  and  approved  this day  of 


Clerk. 

By D.  C. 

246  Virgizda 

Know  all  men  by  these  presents,  that  am  held 

firmly  bound  unto  the  commonwealth  of  Virginia,  in  the  sum 

of to  be  paid  to  the  said  commonwealth,  for  which 

payment,  well  and  truly  to  be  made,  bind  myself 

heirs,  executors  and  administrators,  firmly  by  these  presents. 

And hereby  waive  the  benefit  of 

homestead  exemption  as  to  this  obligation,  and  any  claim  or  right 
to  discharge  any  liability  to  the  commonwealth  arising  under 
this  bond,  with  coupons  detached  from  the  bonds  of  this  state. 

Sealed  with seal  and  dated  this day  of 

,  in  the  year  one  thousand  nine  hundred  and 

The  condition  of  the  above  obligation  is  such,  that  whereas  a 

suit  has  been  instituted  in  the court  of  the 

of by  ,  and  a  suggestion  on 

the  record  in  court  was  entered  by  the  above  defendant  that  the 

above  plaintiff not resident of 

the  state  of  Virginia,  and  that  security  was  required  of 

for  the  payment  of  the  costs  and  damages  which  may  be  awarded 
to  the  said  defendant  and  of  the  fees  due  or  to  become  due 
in  the  said  suit  to  the  officers  of  the  said  court.     Now  if  the 

above  bound   shall  well  and  truly  pay  all  such 

fees  as  are  due  or  may  become  due  from  the  said . 

to  the  officers  of  the  said  court  in  the  prosecution  of  the 
said  suit,  and  moreover  shall  well  and  truly  pay  to  the  said 
defendant  all  such  costs  and  damages  as  may  be  awarded  to 
in  case  the  said  plaintiff    ,  shall  be  cast  therein, 


COSTS  81 

and  condemned  to  pay  the  same,  then  this  obligation  is  to  be 
void,  otherwise  to  remain  in  full  force  and  virtue. 
Executed,  acknowledged,  &c.,  iu  the  presence  of 


(Seal) 

Justification  of  surety 

In  the  Clerk's  Office  of  the court  of  the 

of 

The  above  named   this  day  made  oath,  before 

me,  of  said  court,  that  his  estate,  after  the  pay- 
ment of  all  his  debts,  and  of  such  liabilities  as  he  may  have 

incurred  as  security  for  others,  is  worth  the  sum  of 

the  penalty  of  the  above  bond. 

Given  under  my  hand  this day  of ,19 

Clerk. 

247  West  Virginia 

Know  all  men  by  these  presents,  that  we, ,  prin- 
cipal, and and ,  sureties,  are  held  and 

firmly  bound  unto  the  state  of  West  Virginia,  in  the  just  aud 

full  sum  of dollars,  to  the  payment  whereof,  well 

and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors  and 
administrators,  jointly,  severally  and  firmly,  by  these  presents, 

sealed  with  our  seals  and  dated  this day  of , 

19.. 

The    condition    of    this    obligation    is    such,    that,    whereas, 

and  others  have  in  the  circuit  court  of    

county,  in  the  state  of  West  Virginia,  commenced  a  suit 

at  law,  being  an  appeal  from  the  county  court  of 

county  in  the  matter  of  the  probate  of  the  will  of , 

deceased,   against    and    ,   executors, 

and  others,  and  the  said  proponents  having  suggested  the  non- 
residence  of  the  contestants  and  asked  that  bond  as  security  for 
costs  of  said  suit  be  given  and  said  request  having  been  granted 
by  the  court  and  such  bond  required,  this  bond  is  executed  in 
pursuance  thereof. 

Now,  therefore,  if  the  said and  others  shall  well 

and  truly  and  faithfully  pay  all  such  costs  as  may  be  awarded 
against  the  contestants  when  thereto  required,  then  this  obliga- 
tion to  be  void ;  else  to  remain  in  full  force. 

(Signatures  and  seals) 

In  the  clerk's  office  of  the  circuit  court  of county. 

West  Virginia. 
Taken,  subscribed  and  acknowledged  before  me  in  my  office 
and  approved  as  sufficient,  this day  of , 


Clerk  circuit  court county. 


82  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

Surety  company 

Know  all  men  by  these  presents,  that company 

of ,  a  corporation,  is  held  and  firmly  bound  unto 

the  state  of  West  Virginia,  in  the  just  and  full  sum  of 

dollars,  to  the  payment  whereof,  well  and  truly  to  be  made,  it 
binds  itself,  its  successors  and  assigns  hrmly  by  these  presents, 

sealed  with  its  seal,  and  dated  this  day  of  , 

19.. 

The  condition  of  the  above  obligation  is  such,  that,  whereas, 

in  a  suit  now  depending  in  the  circuit  court  of  

county,  wherein    ,  a  corporation,  is  plaintiff  and 

is  defendant,  it  has  been  suggested  that  the  plain- 
tiff is  a  nonresident  of  this  state,  and  that  security  is  required 
of  it  for  the  payment  of  costs,  &c. 

Now,  therefore,  if  the  said  plaintiff shall  well 

and  truly  pay  all  such  costs  as  shall  be  awarded  to  the  defend- 
ant and  all  fees  due  and  to  become  due,  in  said  suit,  to  the  offi- 
cers of  the  court,  then  this  obligation  to  be  void ;  else  to  remain 
in  full  force. 

company. 

(Seal)  By ,  Attorney  in  fact. 

Acknowledged   before   me    and    approved   as   sufficient,    this 

,19.. 

Teste: ,  Clerk. 

248  Filing 

The  filing  of  a  cost  bond  at  any  time  after  the  bringing  of 
suit,  even  without  leave  of  court,  is  a  substantial  compliance 
with  the  statute.  The  denial  of  a  motion  to  dismiss  the  suit 
for  want  of  a  cost  bond,  amounts  to  leave  to  file  it.^'^ 

249  Amendment 

A  bond  for  costs  is  amendable,  even  on  motion  to  dismiss 
and  cross  motion  to  amend.  ^^ 

250  Additional  bond,  affidavit,  requisites 

An  affidavit  in  support  of  an  application  for  additional  secur- 
ity must  state  facts  which  show  that  the  principals'  and  secur- 
ities' circumstances  have  changed  since  the  approval  of  the 
first  bond.  19 

17  Plaff  V.  Pacific  Express  Co.,  251  lo  Ball  v.  Bruce,  27  HI.  331,  333 
111.  243,  247  (1911).  (1862);  Sec.  4,  c.  33,  Kurd's  Stat. 

18  Shaw  V.  Havekluft,  21  111.  127,  1909,  p.  615. 
128  (1859). 


COSTS  83 

251  Effect 

A  bond  for  costs  covers  all  costs  that  may  be  legally  taxed  in 
the  case,  regardless  of  the  person  to  whom  they  may  accrue.^o 

252  Execution,  issuance 

Under  Illinois  practice,  an  execution  for  costs  may  issue 
against  the  security  without  recovering  a  judgment  against 
him.  21 

253  Execution,  form  (111.) 

The  people  of  the  state  of  Illinois,  to  the  sherilf  of  said  county, 
greeting : 

You  are  therefore  commanded,  that  of  the  goods  and  chattels 
of  (C.  D.),  you  cause  to  be  made  the  sum  of dol- 
lars, and  if  not  paid  within   days  after  demand,  you 

will  levy  the  same  on  the  goods  and  chattels,  lands  and  tene- 
ments of  (X  and  Y)  security  for  costs  herein;  and  proceed  in 
all  things  as  on  a  writ  of  fieri  facias. 

Given,  etc.*^ 
(Attach  fee  bill) 

POOR  PEESONS 

254  District  of  Columbia,  affidavit 

being  first  duly  sworn  on  oath  deposes  and  says : 

I  am  the  plaintiff  in  the  above  entitled  cause  and  am  unable  to 
prosecute  said  action  for  the  reason  that  I  am  entirely  without 
funds  or  property  and  cannot  obtain  funds  and  am  unable  to 
pay  the  clerk  of  this  court  his  legal  fees. 


Sworn,  etc. 

255  Illinois,  rules  of  court,  validity 

The  rule  of  the  Superior  court  of  Cook  county,  imposing  cer- 
tain conditions  upon  applicants  who  seek  leave  to  sue  as  poor 
persons  is  invalid.^^ 

20  Whitehurst  v.  Coleen,  53  111.  249;  See.  28,  e.  33,  Hurd's  Stat. 
247,  250  (1870).  1909. 

21  Whitehurst  v.  Coleen,  supra;  23  People  v.  Chytraus,  228  111.  194 
Sec.  28,  c.  33,  Hurd's  Stat.  1909.  (1907). 

22  Whitehurst    v.    Coleen,  53    HI. 


84  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

256  Illinois,  motion 

Now  comes  the  above  named  plaintiffs  and  move  the  court 
for  leave  to  institute  and  prosecute  this  suit  as  poor  persons  and 
without  advancing  the  costs  thereof. 


Attorney  for  plaintiffs. 


257  Illinois,  affidavit 

,  being  duly  sworn  on  her  oath  says  that  she  is 

the  mother  and  next  friend  of  the  above  named ; 

that  she  and  said  infant  plaintiffs  are  poor  persons ;  that  neither 
they  nor  she  has  any  money  or  means  whatsoever  or  property, 
except  an  interest  in  about dollars'  worth  of  house- 
hold goods  purchased  by  her  and  her  husband  since  their  mar- 
riage which  are  now  being  used  in  their  family ;  that  she  and  said 
plaintiffs  are  without  any  means  of  paying  costs  in  this  suit; 
that  she  desires  to  institute  suit  against  the  above  named  defend- 
ants under  the  Dram  Shop  act  of  the  state  of  Illinois ;  that  she 
has  used  reasonable  diligence  to  find  security  for  costs  but  that 
she  has  been  unable  to  obtain  the  same ;  and  that  if  permitted  to 
prosecute  her  suit  as  a  poor  person  she  has  reason  to  believe,  and 
does  believe,  that  she  will  recover  a  substantial  judgment  against 
the  defendants  for  injury  to  the  plaintiffs'  means  of  support, 
upon  the  following  facts:  that  the  defendants,  within  the  last 
years  before  the  beginning  of  this  suit,  by  sell- 
ing and  giving  intoxicating  liquors  to ,  the  father 

of  the  above  named  infant  plaintiffs,  have  caused  in  whole  or 
in  part  his  habitual  intoxication;  that  she  will  prove  that  he 
has  wasted  his  time  and  squandered  his  money  at  the  dram- 
shop of  the  defendants ;  that  he  has  neglected  his  business  as  a 

coal  miner  from  which  he  derives  an  income  of   

dollars  per  week  when  sober;  that  she  has  been  compelled  to 
perform  manual  labor  in  order  to  support  said  infant  plaintiffs ; 
that  she  has  had  to  seek  public  charity  for  coal  and  provisions 
while  her  said  husband  was  drunk  on  liquor  sold  or  given  to 
him  by  the  said  defendants ;  and  that  she  believes  said  plaintiffs 
have  a  good  and  meritorious  cause  of  action  and  will  be  able 
to  establish  their  said  charges  against  the  said  defendants.  She 
therefore  prays  to  be  permitted  to  prosecute  this  suit  of  the  said 
infants  without  giving  security  or  advancing  the  costs  in  said 
cause. 


Subscribed,  etc. 

Order 

It  is  hereby  ordered  that  the  above  named  infant  plaintiffs  be 
permitted  through  their  mother  and  next  friend, , 


COSTS  85 

to  institute  and  prosecute  the  above  entitled  cause  as  poor  per- 
sons and  without  advancing  any  costs  thereof. 


Judge  of  said  court. 

258  Illinois,  petition  to  sue  as  next  friend  and  as  poor  person 

To  the  honorable  judges  of  said  court: 

Your   petitioner,    C.    B.,   respectfully   represents   unto   your 

honors  that  she  is  a  resident  of county, 

and  for years  last  past  has  acted  in  the 

capacity  of  probation  officers  for  the  juvenile  court;  that  she 
knows  the  plaintiffs  in  this  suit ;  that  their  names  and  ages  are 
as  follows:     (Insert  names  and  ages)  that  since  she  first  knew 

them  in ,1 ,  they  have  resided  at 

street  with  their  father,   ,  and  their  mother ; 

that  their  father  is  an  habitual  drunkard  and  does  practically 
nothing  for  the  support  of  his  wife  and  family;  that  the 
mother  earns  money  for  groceries  and  coal  by  doing  washing 
and  scrubbing,  while  the  oldest  daughter  cares  for  the  other 
children  who  are  not  at  school ;  that  the  mother  is  under  the 
control  and  in  fear  of  her  husband,  who  is  a  strong  man 
able  to  work  at  his  trade  as  a  carpenter,  and  their  mother,  on 
account  of  such  fear,  is  unwilling  and  incompetent  to  represent 
said  minors  in  court  in  this  case. 

Your  petitioner  would  further  show  that   ,  the 

father,  has  worked  as  a  saloon  porter  in  the  saloons  of 

the  defendants  in  this  case ;    and  that  he  has  received 

as  compensation  for  his  work  the  liquor  that  he  has  drunk ;  that 
said  minors  have  no  property  whatever,  and  are  of  such  tender 
years  that  they  are  unable  to  earn  money  with  which  to  pay 
the  costs  of  this  suit;  and  that  their  parents  are  both  without 
property. 

Your  petitioner  would  therefore  pray  that  she  may  be  ap- 
pointed by  the  court  as  the  next  friend  of  said  minors  and 
empowered  to  secure  an  attorney  to  prosecute  this  suit  against 
the  above  defendants  under  the  Dram  Shop  act  for  their  lia- 
bility to  the  above  named  minors,  plaintiffs;  and  that  the  court 
may,  in  its  discretion,  allow  said  minors  by  her  as  next  friend 
to  prosecute  their  suit  in  this  court  without  costs. 

(Verification) 

Order 

On  the  petition  of ,  and  the  affidavit  of 

,  it  is  hereby  ordered  that  the  said be,  and 

she  is  hereby  appointed  the  next  friend  of  ,  and 

,  minors,  and  is  authorized  to  employ  an  attorney 


86  ANNOTATED    FORMS   OF    PLEADING   AND   PRACTICE 

and  to  prosecute  a  suit  against , and 

under  the  Dram  Shop  act  for  their  liability  to  the 

above  named  minors.    It  is  further  ordered  that  said  minors  by 

,  their  next  friend,  prosecute  their  suit  without 

costs,  in  forma  pauperis. 

Enter 

Judge. 

259  Mississippi 

Personally     appeared     before     the     undersigned     authority 

,  plaintiff  in  the  above  styled  cause,  who  makes  and 

subscribes  to  the  following  oath: 

I^ ,  do  solemnly  swear  that  I  am  a  citizen  of  the 

state  of  Mississippi,  and  that  on  account  of  my  poverty,  I  am 
not  able  to  pay  the  costs  or  give  security  for  the  same  in  the 

suit  of    v now   pending   in   the 

court  of county,  Mississippi,  which 

i  have  begun ;  and  that  to  the  best  of  my  belief,  I  am  entitled 
to  the  redress  which  I  seek  by  said  suit. 


Sworn,  etc. 

260  West  Virginia 

This  day  personally   appeared  before  me,   the   undersigned 

authority  in  and  for  said  county  and  state,  one   

and  upon  his  oath  says,  that  he  is  the  administrator  of _. 

,  deceased,  and  that,  as  such  administrator,  he  is 

plaintiff  in  a  certain  action  of  trespass  on  the  case,  now  pend- 
ing in  the  court  of county,  

against   ,  and  that  he  is  unable  to  give  a 

bond  for  costs,  and  prays  that  he  be  permitted  to  prosecute  said 
action  without  giving  such  bond,  under  section  2,  chapter  138 
of  the  Code  of  West  Virginia. 


Administrator  of  . . 
Taken,  subscribed  and  sworn  to  before  me,  etc. 


CHAPTER   IX 
PRAECIPE 

IN  GENERAL  §§ 

§§  265  Florida 

261  Praecipe,  defined  266  Illinois 

262  Necessity  of  praecipe  267  Maryland 

263  Requisites  268  Michigan 

269  Virginia 
FORMS 

264  District  of  Columbia 

IN  GENERAL 

261  Praecipe,  defined 

A  praecipe  is  an  application  to  the  clerk  of  a  court  to  re- 
quire the  defendant  to  appear  and  to  defend  an  action  at  a 
subsequent  term.^ 

262  Necessity  of  praecipe 

In  Florida  and  in  Illinois  suits  at  law  are  commenced  by 
praecipe.  A  civil  suit  is  commenced  in  Mississippi  by  declara- 
tion ;  no  praecipes  are  used.  The  summons  is  very  general  and 
the  clerk  does  not  find  it  difficult  to  make  out  a  summons  from 
the  declaration  itself. 

263  Requisites 

In  actions  against  receivers  the  praecipe  should  describe  the 
defendant  as  receiver  and  not  receiver.^ 

FORMS 

264  District  of  Columbia 

^The  clerk  of  said  court  will  please  issue  summons  against 
,  administrator  of  the  estate  of 


Attorney  for  plaintiff. 

1  Schroeder   v.    Merchants   &   Me-  2  Wileke  v.  Henrotin,  241  HI.  169, 

chanics'    Ins.    Co.,    104    111.    71,    75       174  (1909). 
(1882).  3  See  Section  211,  Note  60. 

87 


88  ANNOTATED  FORMS  OF  PLEADING   AND  PRACTICE 

Alias  summons 

The  clerk  of  said  court  will  please  issue  alias  summons  for 
the  defendant. 

265  Florida 

To  the  clerk  of  said  circuit  court: 

You  will  please  issue  a  summons  ad  respondendum  in  the 

above  entitled  cause  of  action  to of 

county,  Florida,  defendant  in  the  above  entitled  cause  of  action, 
and  make  same  returnable  to  the  Rule  day  of ,  19. . 

Dated,  etc. 


Plaintiff's  attorney. 


Affidavit 


Personally   appeared  before   me,   clerk  of  the  circuit  court 

aforesaid ,  who,  being  by  me  duly  sworn,  says  that 

the  above  suit  for  (Name  action,  as  assumpsit,  etc.,)  is  brought 
in  good  faith  and  with  no  intention  to  annoy  the  defendant  .  .  . 

and  that  the  cause  of  action  accrued  in  the  county  of 

,  in  which  the  suit  is  brought. 


Subscribed,  etc. 

266  Illinois 

The  clerk  of  said  court  will  issue  ^  a  summons  in  the  above 

entitled  cause  to  said  defendant     in  a  plea  of  "^    

to  the  damage  of  said  plaintiff     in  the  sum  of  '^   

dollars,  direct  the  same  to  the  sheriff  of county  to 

execute,  and  make  it  returnable  to  the term  of  said 

court,  19, 


Dated,  etc. 


To ,  Clerk. 


Plaintiff's  attorney. 


*  In   Florida,   praecipes   for   sum-  *  *  debt ;  "  if  detinue,  * '  detinue ;  "  if 

mons  are  the  same  in  all  actions,  the  ejectment,  "trespass  quare  clausum 

form   of  the  action  is  shown   from  f regit — ejectment,"       or       "eject 

the  caption.  ment ;  "    if    replevin,    ' '  replevin ;  * 

5  When    suit     is    commenced    by  if  trespass  quare  clausum  f  regit  or 
capias,    say,    ' '  writ    of    capias    ad  trespass    vi   et   armis,    ' '  trespass ; ' 
respondendum."     In  assumpsit  and  if    trover,    "trespass    on    the    case 
attachment  in  aid  insert  "summons  trover." 

and  writ    of   attachment. ' '  ^  State    the    amount    to    be    de 

6  If  assumpsit  say,  * '  trespass  on  manded   in  the  ad  damnum,  unless 
the    case    on    promises ; "    if    case,  suit  is  commenced  by  capias,  when 
' '  trespass   on   the   case ;  "    if   cove-  the  true  amount  should  be  given, 
nant,       * '  covenant ; "       if       debt. 


PRECIPE 


89 


267  Maryland 

Under  Maryland's  practice,  the  praecipe  appears  on  the  back 
of  the  declaration,  after  the  number  and  the  title  of  the  case. 
See  the  declaration. 

268  Michigan 

To  the  clerk  of  said  court: 

Let  a  writ  of issue  in  the  above  entitled  cause. 

Action  of  . ., 

Damages    

Dated, ,  19 . . 

Attorney . .  for 

Business  address ; . . 


^  1=1 


^    •  s  2 


o 


bo 

g 

o 


n3 

a: 


269  Virginia 

Action  of  detinue  to  recover  the  following  personal  property ; 
(Describe  each  item  and  give  its  value.) 

Damages  $ 

Summon  to  the  first rules 

p.  q. 


CHAPTER   X 
PROCESS 


IN   GENERAL 

§§ 

270  Process,  style 

271  Process,  void;  notice 

272  Service,   persons  interested 

273  Service,  tenants 

SUMMONS 

274  Nature  and  effect 

REQUISITES 

275  Venue,   resident  and  nonresi- 

dent defendants 

276  Name,  people 

277  Name,  middle 

278  Name,    resident   and    nonresi- 

dent defendants 

279  Amount  claimed 

280  Return  day 

281  Teste 

282  Seal 

283  Endorsement 

FORMS 

284  District  of  Columbia 

285  Florida 

286  Illinois 

287  Maryland 

288  Michigan 

289  Mississippi 

290  Virginia 

291  West  Virginia 

EETURN 

292  Officer's  authority,  deputy 

293  Special    deputy;     return,    re- 

quisites 

294  Special    deputy;    appointment 

and  return 


295  Return,  validity 

296  Return,  effect 


297  Individuals,  Illinois 

298  Individuals,  Maryland 

299  Individuals,  Michigan 

300  Individuals,  Mississippi 

301  Individuals,  Virginia 

302  Individuals,  West  Virginia 

303  Partnership,  Illinois 

304  Corporations,       District       of 

Columbia 

305  Corporations,  Illinois 

306  Corporations,  Maryland 

307  Corporations,  Virginia 

308  Corporations,  West  Virginia 

309  Foreign  corporations,   Illinois 

310  Foreign     corporations.     West 

Virginia 

311  Railroad   companies,   Illinois 

312  Township 

AMENDMENT 

313  Power  of  officer 

314  Power  of  court,  notice 

315  Nature  of  amendment 

316  Person  to  amend 

PRACTICE 

317  Quashing  summons 

318  Alias  summons 

319  Amendment 

PUBLICATION 

320  Pre-requisites 

321  Affidavit 

322  Notice 

323  Certificate  of  mailing 

324  Proof 


90 


PROCESS 


91 


DECLARATION 

§§ 

325  Practice 

CAPIAS 

326  Jurisdiction 

327  Practice 

AFFIDAVIT 

328  Nature  and  scope 

329  Requisites 

330  Form,  absconding,  Virginia 

331  Form,  assault  and  battery 

332  Form,  conversion 

333  Form,  false  representations 


BOND 


WBIT 

§§ 

336  Service 

337  Form,  Florida 

338  Form,  Illinois 

339  Form,  Michigan 


340  Arrest,  nature 

341  Jurisdictional  defects,  waiver 

342  Bail  piece,  waiver 

343  Bond,  validity 

344  Bond,  liability 

345  Objections 


346  Irregularities 

347  Motion  to  quash  writ 


334  Creditors 

335  Sheriff 


JUDGMENT 
348  Discontinuance 


IN  GENERAL 

270  Process,  style 

When  the  law  expressly  directs  process  to  be  in  a  specified 
form  and  to  be  issued  in  a  particular  manner,  the  form  and  the 
manner  prescribed  must  be  followed  in  every  particular,  or  the 
process  is  absolutely  void.  Thus  if  the  constitution  or  the 
statute  expressly  requires  all  process  to  run  in  a  certain  way, 
to  be  under  a  certain  seal  and  to  be  tested  in  the  name  of  a 
certain  officer,  the  failure  to  follow  these  requirements  renders 
the  process  void,  for  the  reason  that  these  provisions  are  man- 
datory.^ This  rule  is  applicable  to  all  orders,  judgments,  or 
writs  in  the  nature  of  process.-  Defects  in  process  to  compel 
an  appearance,  make  the  process  void  only  in  a  limited  sense 
when  the  defendant's  appearance  is  actually  entered,  as  issu- 
ance and  service  of  process  are  waivable  by  general  appear- 
ance. In  Illinois  process  must  run:  "In  the  name  of  the 
people  of  the  state  of  Illinois. ' '  ^  The  constitutional  provision 
requiring  process  to  run  in  the  name  of  the  people  applies  to 


1  Sidwell  v.  Schumacher,  99  111. 
426,  433  (1881);  Forbes  v.  Darling, 
94  Mich.  621,  627   (1893). 

2  Sidwell  v.  Schumacher,  99  HI. 
437. 


3  Sec.    33,   art.    VI,    Const.    1870 
(ni.). 


92  ANNOTATED   FOEMS   OF    PLEADING   AND   PRACTICE 

original  and  final  process  known  to  the  common  law,  as  sum- 
monses, executions  or  fee  bills;  it  has  no  application  to  special 
statutory  proceedings  which  are  unknown  to  the  common  law, 
unless  the  legislature  has  expressly  so  directed.^  Under  the 
present  and  former  constitutions  of  Michigan,  the  style  of  all 
process  must  be:  "In  the  name  of  the  people  of  the  state  of 
Michigan."^ 

271  Process,  void;  notice 

An  officer  who  has  notice  that  the  process  is  void,  acts  at  his 
peril.^ 

272  Service,  persons  interested 

Service  of  jurisdictional  process  upon  a  person  who  stands 
in  a  fiduciary  or  a  representative  relation  to  others  or  to  the 
subject  matter  to  be  affected  by  the  action  or  proceeding  and 
who  has  some  personal  interest  which  is  antagonistic  to  those 
whom  he  represents,  is  ineffectual  to  bind  them;  and  statutory 
authority  to  make  such  service  is  invalid.^ 

273  Service,  tenants 

An  officer,  in  serving  process,  has  no  power  to  force  the  outer 
door  of  a  tenant  who  is  in  the  occupation  of  a  distinct  portion 
of  a  building  occupied  by  several  separate  tenants,  although 
the  officer  may  be  within  the  building.^ 

SUMMONS 

274  Nature  and  effect 

At  common  law  the  issuance  of  a  summons  constitutes  the 
commencement  of  a  suit  for  the  purpose  of  arresting  the  statute 
of  limitations.^  The  issuing  of  the  first  summons  in  an  action 
is  the  commencement  of  the  suit;  the  omission,  in  good  faith 
to  place  the  summons  in  the  hands  of  the  sheriff  for  service 
does  not  render  inoperative   the  commencement  of  the  suit, 

4 Curry   v.    Hinman,   11   HI.   420,  420  (1911);  Par.  52,  c.  122  Kurd's 

423,  424   (1849).  Stat.  1911. 

0  (9984),  C   L.  1897  (Mich.).  s  steams  v.  Vincent,  50  Mich.  209, 

"People  V.  Zimmer,  252  111.  9,  27,  221   (1883). 

28  (1911)  9  Eylenfeldt   v.   Illinois  Steel  Co., 

7  People   V.    Feicke,   252   111.   414,  165  111.  185   (1897). 


PROCESS  93 

although  it  might  become  necessary  to  issue  and  serve  a  new 
summons,^® 

REQUISITES 

275  Venue,  resident  and  nonresident  defendants 

A  summons  is  void  if  it  fails  to  definitely  show  the  county  in 
which  the  defendant  is  required  to  appear.^ ^  A  summons 
against  several  defendants  who  reside  in  different  counties  must 
be  specific  and  clear  in  regard  to  the  court  to  which  each  one  of 
them  is  summoned.  12 

276  Name,  people 

The  requirement,  in  Illinois,  that  process  shall  run  "In  the 
name  of  the  people  of  the  state  of  Illinois,"  is  complied  with 
by  making  the  writ  run  thus:  "The  people  of  the  state  of 
Illinois,  to  the  sheriff  of  ....  county. ' '  i^ 

277  Name,  middle 

The  middle  letter  constitutes  no  part  of  a  person's  name.** 

278  Name,  resident  and  nonresident  defendants 

A  summons  directed  against  defendants  who  reside  in  several 
counties  may  contain  the  names  of  all  of  them.i'^ 

279  Amount  claimed 

A  plaintiff's  recovery  is  not  limited  by  the  amount  claimed 
in  the  summons,  but  by  the  amount  laid  in  the  declaration.*' 
In  an  action  of  debt  the  summons  must  demand  a  particular 
sum  as  debt,  it  being  the  foundation  of  the  action.*'^ 

280  Return  day 

Previous  to  the  Illinois  Practice  act  of  1872,  it  was  necessary, 
in  circuit  courts,  to  make  a  summons  returnable  on  the  first  day 
of  the  next  circuit  court  in  which  an  action  was  commenced; 
and  a  summons  was  considered  void  if  more  than  one  term  of 

10  Schroeder  v.  Merchants  &  Me-  i*  Moss  v.  Flint.  13  HI.  570,  571 
chanics'    Ins.    Co.,    104   111.    71,    74       (1852). 

(1882);    Sec.    1,   Practice   act    1907  is  Orendorff  v,  Stanberrj,  20  111. 

(111.).  92. 

11  Orendorff  v.  Stanberry,  20  HI,  le  Thompson  v.  Turner,  22  111,  389, 
89,  93    (1858).  390  (1859). 

12  Orendorff  v.  Stanberry,  supra.  i^  Weld  v.   Hubbard,   11  111.  573, 

13  Knott  V.  Pepperdine,  63  111.  219  575    (1850), 
(1872) ;  Sec,  33,  art,  VI,  Const,  1870 

(HI.). 


94  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

court  had  intervened  between  the  teste  and  the  return  day.^' 
Under  the  present  statute,  in  suits  commenced  ten  days  prior 
to  the  beginning  of  a  term  of  court,  the  summons  may  be  made 
returnable  on  the  first  day  of  the  next  term  of  court  in  which 
the  action  is  brought;  in  suits  begun  within  less  than  ten  days 
of  the  next  term  of  court,  the  summons  may  be  made  return- 
able to  the  next  term  as  before  or  to  a  second  succeeding  term 
of  court ;  and  all  summonses  may  be  made  returnable  to  any 
term  of  court  which  may  be  held  within  three  months  of  the 
date  thereof. ^^  A  summons  is  void  if  it  is  not  made  return- 
able at  the  required  term.^o 

281  Teste 

In  signing  an  Illinois  summons  the  clerk  may  use  the  initial 
of  his  first  name.^^  In  Michigan  all  process  must  be  tested  in 
the  name  of  the  chief  justice,  presiding  justice  or  judge,  or  one 
of  the  judges  of  the  court  from  which  it  issues,  unless  there  is  a 
vacancy  in  any  of  these  offices,  in  which  case  the  testing  may  be 
in  the  name  of  the  chief  justice,  or  one  of  the  associate  justices 
of  the  supreme  co,urt.-2 

282  Seal 

The  seal  of  the  court,  or  if  there  is  no  such  a  seal,  then  the 
private  seal  of  the  clerk,  is  an  essential  part  of  an  Illinois 
summons;  a  summons  is  void  without  a  seal,  and  should  be 
quashed  on  motion.-^  Michigan  process  must  be  sealed  with 
the  seal  of  the  court  from  whence  it  issues.^* 

283  Endorsement 

In  Michigan,  before  the  delivery  of  process  to  an  officer  for 
service,  it  should  be  subscribed  or  endorsed  with  the  name  of 
the  attorney,  solicitor  or  officer  at  whose  instance  the  process 
was  issued.-^     This  requirement  operates  as  a  security  to  the 

isHildreth  v.  Hough,  20  111.  331,  21  Bishop  Hill  Colony  v.  Edgerton, 

332     (1858);    Miller    v.    Handy,    40  26  III.  54,  55    (1861). 
HI.  448,  450    (1866);   See.   1,  c.   83,  22(9984),   C.   L.   1897    (Mich.). 

Eev.   Stat.    1845    (HI.).  23  Hannum  v.  Thompson,  1  Scam. 

19  Sec.  1,  Practice  act  1907  (111.);  238,  239   (1835);  Anglin  v.  Nott,  1 

Schmitt  V.  Devine,  164  HI.  537,  542,  Seam.     395     (1837);     Beaubien     v. 

543   (1897);  Mechanics'  Savings  In-  Sabine,   2   Scam.   457    (1840);     Par. 

Btitution  V.  Givens,  82  111.  157,  159  62,  c.  37,  Hurd's  Stat.  1909,  p.  672. 
(1876).  24  (9984),  C.  L.  1897   (Mich.). 

2oCavanaugh  v.   McConochie,   134  25(9984),  C.  L.   1897   (Mich.). 

111.     516.     521     (1890)  ;     Culver     v. 
Phelps,  130  111.  217,  224  (1889). 


PROCESS 


95 


defendant  against  costs,  and  it  is  substantially  complied  with, 
after  process  has  been  issued  by  an  endorsement  nunc  pro 
tunc.^^ 

FORMS 

284  District  of  Columbia 

In  the  supreme  court  of  the  District  of  Columbia, 


Plaintiff 


Defendant 


At  Law 


No. 


The  President  of  the  United  States  to  the  Defendant  , 

,  greeting : 

You  are  hereby  summoned  ^''  to  appear  in  this  court  on  or 
before  the  twentieth  day,  exclusive  of  Sundays  and  legal  holi- 
days, after  the  day  of  service  of  this  writ  upon  you,  to  answer 
the  plaintiff's  suit,  and  show  why  he  should  not  have  judgment 
against  you  for  the  cause  of  action  stated  in  his  declaration ; 
and  in  case  of  your  failure  so  to  appear  and  answer,  judgment 
will  be  given  against  you  by  default. 

Witness,  the  honorable    ,  chief  justice  of  said 

court,  the day  of ,  19 .  . 

,  Clerk. 

By ,  Assistant  Clerk. 

,  Attorney. 


< 


:3 


(H  o  M    ' 
o   a   fl  t3 


o 


o 


26  Parks  V.  Goodwin,  1  Doug.  56, 
57    (Mich.   1843). 

27  If  it  is  an  alias  summons  in- 
sert here  "as  you  have  before  been 
summoned." 


> 

2^ 

^1J 


T3 


1=1    i=l 


■^3   Ph  c»    cd 

28  Insert 
summons. 


o 


alias,  if  it   is   a  second 


96 


ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 


pui 


9  ^ 

'^  : 

o 

,£2.S 


285  Florida 


The  State  of  Florida. 


To  all  and  singular  the  sheriffs  of  the  state  of  Florida,  greeting: 

"We  command  you  to  summon 

if   be  found  within  your  county,  personally  to 

be  and  appear  before  the  judge  of  our  circuit  court  for 

county, judicial  circuit  of  Florida,  at  the 

court  house  in   on  the   day 

of  next,  being  the  rule  day  of  said  court,  to  answer 

in  an  action  of  


to  the  plaintiff's  damages dollars;  and  have 

then  and  there  this  writ. 
"Witness,   ,  clerk  of  our  said  circuit  court,  this 

'day  of ,19.. 

,  Clerk. 


286  Illinois 

State    of    Illinois,  | 

county.  \^^- 

The  people  of  the  state  of  Illinois, 

To  the  sheriff  of  said  county,  greeting ; 
"We  command  you  that  you  summon   


if  he  shall  be  found  in  your  county,  personally  to  be  and  appear 

before  the court  of county,  on  the  .^ 

day  of  the  term  thereof,  to  be  holden  at  the  court  house,  in  the 
city  of ,  in  said county,  on  the  first 


PROCESS  97 

Monday  of ,  19  •  • ,  next,  to  answer  unto 

in  a  plea  of  ^^ ,  to  the  damage  of  said  plaintiff    ,  as 

it  is  said,  in  the  sum  of dollars. 

And  have  you  then  and  there  this  writ,  with  an  indorsement 
thereon,  in  what  manner  you  shall  have  executed  the  same. 

Witness,   ,  clerk  of  our  said  court,  and  the  seal 

thereof,    at    ' ,    aforesaid,    this    day    of 

,19.. 

,  Clerk. 

(Seal  of  the  court) 


287  Maryland 

State  of  Maryland, county,  to  wit, 

To  the  sheriff  of county,  greeting : 

You  are  hereby  commanded  to  summon (a  body 

corporate,  of county),  to  appear  before  the  circuit 

court  for county,  to  be  held  at  the  court  house,  in 

,  in  and  for county,  on  the 

Monday  of next,  to  answer  unto  (part- 
ners trading  as    )    in  a  plea  of  ^o    

And  have  you  then  and  there  this  writ. 

Witness  the  honorable  chief  judge  of  our  said 

court,  the  day  of  ,  

Issued  the ' day  of , 

(Court's  seal) 


.,  Clerk. 


29  In  all  common  law  actions,  the  as  a  plea  of  "trespass  on  the  case- 
summons    is    the    same,    except    the  trover." 

designation  of  the  form  of  the  ac-  In  condemnation,  as  "in  

tion   and   the    amount   claimed.      In  certain   petition   for   the   condemna- 

assumpsit,    the   form   of   the    action  tion    of    certain    property 

is  described  as  a  plea  of  "trespass  in  said  petition  described,  filed  in 
on  the  case  on  promises;"  in  case,  said  court,"  omitting  "to  the  dam- 
as  a  plea  of  ' '  trespass  on  the  case ; ' '  age, ' '  etc.,  and  concluding  with 
in  covenant,  as  a  plea  of  "cove-  "And  have  you  then  and  there," 
nant ; "  in  debt,  as  a  plea  of  etc. 
"debt;"  or  a  "plea  that  he   ren-  In   mandamus,   as   "in   a  certain 

der  to  the  said  plaintiff dol-  petition  for  mandamus  filed  in  said 

lars  and cents  which  he  owes  court, ' '  omitting  ' '  to  the  damage, ' ' 

to    and   unjustly    detains    from    the  etc. 

said   ;"  in  detinue,  as  In   quo   warranto,   as   "in   an  in- 

a  plea  of  "detinue;"  in  ejectment,  formation   in   the  nature   of  a  quo 

as  a, -plea  o{  " trespass  quare  cJausum  warranto,"  omitting  "to  the  dam- 

f regit — ejectment;"  in  replevin,  as  age,"  etc. 

a  plea  of  ' '  replevin ;  "  in  trespass,  so  For  designation  of  form  of  ac- 

as  a  plea  of  "trespass;"  in  trover,  tion,  see  Note  29,  supra. 


98  ANNOTATED  FORMS  OF  PLEADING  AND  PRACTICE 

288  Michigan 

State  of  Michigan. 

The  circuit  court  for  the  county  of 

In  the  name  of  the  people  of  the  state  of  Michigan. 
To : 

You  are  hereby  notified  that  a  suit   has  been  conunenced 

against  you  in  said  court  by  as  plaintiff     ,  and 

that  if  you  desire  to  defend  the  same,  you  are  required  to  have 
your  appearance  filed  or  entered  in  the  cause,  in  accordance  with 
the  rules  and  practice  of  the  court,  in  person  or  by  attorney, 
within  fifteen  days  after  service  of  this  summons  upon  you. 

Hereof  fail  not,  under  penalty  of  having  judgment  taken 
against  you  by  default. 

The    plaintiff   claims    damages    in   said    suit    not    exceeding 
dollars. 

Service  of  this  summons  shall  be  made  on  or  before  the 

day  of ,  19 . . ,  which  is  the  return  day  hereof. 

Witness,  the  honorable   ,  circuit  judge,  and  the 

seal  of  said  court,  at  the of the  place 

of  holding  said  court,  this  day  of  ,  19 . . 

,  Clerk. 


,  Plaintiff's  attorney , 

Business  address 


289  Mississippi 

The  state  of  Mississippi,  to  the  sheriff  of county, 

greeting : 
We  command  you  hereby  that  you  summon    , 

defendant    ,  if  to  be  found  in  your  county,  so  that 

be  before  the  circuit  court  to  be  holden  in  and  for  the 

district  of  said  county,  at  the  court  house  thereof,  in  the  city  of 

,  on  the    Monday  of   19 .  . ,  to 

answer  the  declaration  of ,  plaintiff     , 

against  the  said  defendant,  now  on  file  in  the  clerk's  office  of 
said  court.    And  have  then  there  this  summons. 

The  amount  actually  demanded  in  this  suit  is  the  sum  stated 
in  said and  lawful  interest  and  costs. 

Judgment  will  be  demanded  at  return  term. 

Issued  the day  of 19 . . 

P-  q- 

Declaration  filed  when  summons  issued. 
Attest : 

,  Clerk. 

,  D.  C. 


PROCESS  99 

290  Virginia 

Commonwealth  of  Virginia,  to  the  sergeant  of  the  city  of 

,  greeting : 

We  command  you  that  you  summon   to  appear 

in  the  clerk's  office  of  our  court  of  law  and  chancery  of  the  city 

of ,  at  the  rules  to  be  holden  for  the  said  court,  on 

the Monday  in ,  19 . . ,  to  answer , 

trading  as of  a  plea  of  ^^   

And  have  then  and  there  this  writ. 

"Witness, ,  clerk  of  our  said  court  at  his  office,  this 

day  of ,  19 . . ,  in  the year  of  our  founda- 
tion. 

Teste: 

,  Clerk. 

By ,D.  C. 

291  West  Virginia 

State  of  West  Virginia,  to  the  sheriff  of county, 

greeting : 

We  command  you  that  you  summon  ,  if  he  be 

found  in  your  bailiwick,  to  appear  before  the  judge  of  our  circuit 

court  for  the  county  of ,  at  rules  to  be  held  in  the 

clerk 's  office  of  said  coui't  on  the  first in 

next,  to  answer in  a  plea  of  ^^ 

And  have  then  and  there  this  writ. 

Witness  clerk  of  our  said  court,  at  the  court 

house  of  said  county,  in  the  city  of ,  on  the 

day  of  ,  19. .,  and  in  the  year  of  the 

state. 

,  Clerk. 

By ,D.C. 

EETURN 

292  Officer's  authority,  deputy 

But  one  return  can  be  made  of  a  writ  whether  the  return 
is  made  before  or  on  the  return  day.^^  A  return  of  process 
made  by  a  deputy  sheriff  in  his  own  name  is  valid  under  Michi- 
gan statute,  although  not  so  at  common  law.^* 

31  Here  insert  the  particular  form  33  Eaton  v.  Fullett,  11  111.  491, 
of  action  and  the  amount  of  dam-       493   (1850). 

ages,    thus:     "debt    on    negotiable  s*  Calender  v.  Olcott,  1  Mich.  344, 

note,  damages  $ ;"  or  "tres-      347  (1849);  Wheeler  v.  Wilkins,  19 

pass  on  the  case,  damages  $ "      Mich.  78,  80   (1869). 

32  The  form  of  the  action  and  the 
damages  are  designated  the  same 
as  in  Virginia. 


100  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

293  Special  deputy;  return,  requisites 

The  return  of  a  summons  by  a  special  deputy  may  be  in  the 
form  of  an  afifidavit.^^ 

294  Special  deputy;  appointment  and  return 

I  hereby  deputize  and  appoint ,  special  deputy  to 

serve  the  within  summons. 
Dated,  etc. 


Sheriff. 


Service 


Served  the  within  writ  on  the  within  named  defendants 

and by  reading  the  same  and  delivering  to 

each  of  them  a  true  copy  thereof  this day  of , 

19.. 

,    Sheriff. 

By ,  Special  Deputy. 

Affidavit 

(Venue) 

I  solemnly  swear  that  I  served  the  within  writ  as  special 
deputy  at  the  time  and  in  the  manner  as  in  my  return  thereto  set 
forth,  and  that  said  return  is  in  every  way  and  particular  true. 


Subscribed,  etc. 

295  Return,  validity 

The  omission  in  the  return  of  a  summons  of  the  full  name 
of  the  defendant  does  not  invalidate  the  service,  if  the  return 
shows  that  the  summons  was  served  upon  the  person  named 
in  the  summons  where  his  full  name  is  given.^® 

296  Betum,  effect 

The  return  of  summons  is  not  conclusive  of  the  character  of 
the  person  served.^^ 


35  Edwards  v.  McKay,  73  111.  570,  37  Booz  v.  Texas  &  P.  Ey.  Oo.,  250 
572    (1874).                                                   111.  376,  381   (1911). 

36  Verdun   v.   Barr,  253   111.   120, 
126  (1912). 


PROCESS  101 

297  Individuals,  Illinois 

The  return  of  process  must  show  on  whom,  in  what  manner, 
and  when  service  was  made.^^  The  officer  is  not  required,  under 
Illinois  statute,  to  date  his  return.  He  may  merely  state  the 
time  of  service  in  his  endorsement.^^  The  actual  placing  of 
the  writ  in  the  clerk's  office  constitutes  the  return,  and  the 
clerk's  file-mark  indicates  the  date  of  the  return.^o 

"I  did  on  the day  of ,  serve  this  writ,  by 

reading  the  same  to  the  within  named dated,  etc., 

is  a  good  return."  '^^ 

298  Individuals,  Maryland 

Summoned  and  copy  of  Narr.  and  notice  to  plead  left  with 
,  one  of  the  defendants ;  non  est  as  to 

and 

,  Sheriff. 

299  Individuals,  Michigan 

State    of    Michigan,  |  gg 
County  of j 

I  hereby  certify  and  return  that  on  the day  of  .... 

,  l9 . . ,  at   in  said  county,  I  served 

the  within  summons  personally  on   

defendant  . . .  named  in  said  summons,  by  then 

and  there,  at  the  place and  on  the  date above 

mentioned,  showing  to  said  above  named  defendant 

the    within    summons    with    the    seal    impressed    thereon,    and 

delivering  to  said  defendant  a  true  copy  of  said 

summons    


My  fees  $. 


Sheriff   of  said   county. 


38Cariker  v.  Anderson,  27  111.  358,  (1862) ;  Cummings  v.  People,  50  111. 

363  (1862) ;  Ball  v.  Shattuek,  16  111.  132,  134   (1869). 
299    (1855);    Sec.  2,  e.  110,  Kurd's  *o  Hoffue   v.   Corbit,   156  111.   540, 

Stat.  1909,  p.  1693.  546   (1895). 

39Cariker     v.     Anderson,     supra;  4i  Ball  v.  Shattuek,  16  HI.  299. 

Funk   V.    Hough,    29    111.    145,    148 


102 


ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 


<x> 
-a 


^  o 

a 

HO 


Plaintiff.., 

V. 

a 

<v 

=4-1 

Q 

CO 

o 

Returned  and  filed  this 
day  of ,  19 .  . 

Clerk. 

Ol 

a 


300  Individuals,  Mississippi 

Executed   personally   by  delivering  to    a  true 

copy  of  the  within  writ day  of , 

19.. 

,  Sheriff. 

,  Deputy  Sheriff. 

301  Individuals,  Virginia 

Executed  on  the day  of within  the  county 

of by  delivering  a  true  copy  of  the  within  sum- 
mons in  writing  to  in  person ;   not 

found  at  the  place  of  their  usual  abode.     I  delivered  a  true 

copy  to    ,  a  member  of  the   family  over  sixteen 

years  of  age  after  explaining  the  purport  of  the  same. 

D.  S. 

For ,  Sheriff, 

county. 

302  Individuals,  West  Virginia 

Executed  the  within  summons  on  the  within  named 

on  the   day  of  ,   ,  by  delivering  to  him, 

in  person,  a  true  copy  thereof,  in  county.  West 

Virginia. 

,  Deputy  Sheriff  for 

,S.  M.  C. 


On  member  of  family 

Executed  the  within  summons  on  the  within  named 

,  on  the day  of , ,  by  delivering 

on  that  day  a  true  copy  thereof,  to  ,  at  his  usual 


PROCESS  103 

place  of  abode  in county,  West  Virginia,  a  person 

found  there  who  is  a  member  of  his  family,  and  above  the  age 

of  16  years ;  giving  the  said   information  of  the 

purport  of  said  copy ;  the  said not  being  found. 

,  Deputy, 

For ,  S.  T.  C. 


303  Partnership,  Illinois 

I  have  duly  served  this  writ  on  the  within  named 

and partners  doing  business  under  the  firm  name 

and  style  of  ,  by  reading  the  same  to,  and  at  the 

same  time  delivering  a  true  copy  thereof  to agent 

of  said  copartnership,  at  its  place  of  business  in  said  county  of 

;  the  within  named  and 

being  nonresidents  of  and  not  found  in  my  county,  as  I  am 
therein  commanded,  this day  of ^- 


304  Corporations,  District  of  Columbia 

Served  copies  of  the  declaration,  notice  to plead, 

affidavit  and  this  summons  on  the  defendant,  by  service  on  .... 

president,  the day  of ,  19 . . 

,  Marshal. 

$ 


305  Corporations,  Illinois 

In  the  service  of  process  upon  a  corporation  on  any  other 
agent  or  officer  than  the  president,  the  return  must  show  that 
the  president  was  not  found  in  the  county.^^  Service  on 
"as  president"  or  "as  secre- 
tary" is  not  service  upon  the  president  or  the  secretary  of  a 
corporation.^* 

The  return  on  a  corporation  under  the  present  statute  may 
be  as  follows: 


42  Watson    V.    Coon,   247   111.   414,  44  Illinois  &  Miss.  Tel.  Co.  v.  Ken- 

415   (1910).  nedy,   24   111.   319    (1860);    Chicago 

•»3  Chicago     Planin?    Mill    Co.    v.       Planing     Mill     Co.     v.     Merchants' 
Merchants'    National   Bank,   86   111.       National  Bank,  86  111.  589. 
587,   588    (1877)  ;    Sec.    8,    Practice 
act    1907    (Kurd's    Stat.    1909,    p. 
1694). 


104  ANNOTATED  FORMS   OF   PLEADING   AND   PRACTICE 

Served  this  writ  on  the within  named  defendant 

company  by  delivering  a  copy  thereof  to 

(cashier)  of  the  said  company,  the  president  of  said  company 
could  not  be  found  in  my  county,  the day  of 

19.. 

,  Sheriff. 

By Deputy  Sheriff.-'^ 

306  Corporations,  Maryland 

Summoned  company  of county, 

Maryland,  body  corporate,  by  service  upon 

one  of  the  directors  of  the  said company  of 

county,  by  reading  the  summons  to  said 

and  by  leaving  a  copy  of  the  summons  and  a  copy  of  the  declara- 
tion with  said  ,  this day  of  , 

19.. 


Sheriff. 

307  Corporations,  Virginia 

Executed  in county on  the 

day  of ,  19.  .,  by  delivering  a  true  copy  of  the 

within  summons  in  writing  to  ,  in  person,  who  is 

director  of  the  within  ,  in  which  county  said  .... 

resides,  and  said has  its  principal  office ; 

and  further  executed  in  the  county  of on  said 

defendant  of ,  19.  .,  by  delivering  a  true  copy 

of  the  within  summons  in  writing  to  ,  in  person, 

who  is  a  director  of  the  within  defendant  and  a 

resident  of  the  county  of ,  in  which  county  the 

,  which  is  a  foreign  corporation  does  business. 

,  Sheriff. 

By ,  Deputy  Sheriff. 

308  Corporations,  West  Virginia 

Executed  ,  19 .  . ,  upon  the  within  named 

company,  a  corporation,  by  delivering  an  office 

copy  of  the  within  writ,  in  person  to president  of 

said  corporation,  in   county,  West  Virginia,  that 

being  the  county  and  state  wherein  the  said presi- 
dent, resided  at  the  time  of  said  service. 

S.  W.  C. 

D.  S. 


Mileage 
Fees  $. . 


45  Chicago  &  P.  R.  Co.  V.  Kaehler,  Shoe  Mfg.  Co.  Ill  ni.  309,  312 
79  111.  354,  355  (1875);  Chicago  (1884);  Sec.  8,  Practice  act  1907 
Sectional  E.  U.  Co.  v.  Congdon  Brake       (111.). 


PROCESS  105 

309  Foreign  corporations,  Illinois 

A  forei^m  corporatiou  which  is  doing  business  in  Illinois  and 
having  agents  and  property  there,  may  be  served  with  process 
the  same  as  a  domestic  company.^"  The  agent  upon  whom 
service  of  summons  against  a  foreign  corporation  is  authorized 
must  be  one  who  has  power  to  represent  the  corporation  in  the 
transaction  of  some  part  of  its  charter  business.  Mere  solicita- 
tion of  business  by  persons  who  have  no  other  authority,  does 
not  constitute  the  persons  agents  within  the  meaning  of  the 
statute."*"  An  officer  of  a  foreign  coi*poration  who  passes 
througli  the  state  on  private  business  cannot  be  served  with 
process  against  a  corporation  which  is  not  doing  business  nor 
having  an  office  in  the  state.^^ 

310  Foreign  corporations,  West  Virginia 

Executed  the  within  process  on  the  within  named 

company,  a  corporation,  on  the day  of ,  19.  ., 

I)y  on  said  day  delivering  an  office  copy  thereof  in 

county.  West  Virginia,  in  person,  to   auditor  of 

the  state  of  West  Virginia,  and,  as  such  auditor,  attorney  in 
fact,  pursuant  to  ciiapter  39  of  the  Acts  of  1905,  of  the  legisla- 
ture of  West  Virginia,  to  accept  service  of  process  and  notice  in 
said  state  for  said  corporation,  and  to  be  served  with  process  and 

notice  in  said  state  for  said  corporation.     The  said   

at  the  time  of  said  service  being  the  auditor  of  the  state,  and 

residing,  at  said  time  in  the  s<iid  count v  of 

..! S.  K.   C. 

By  ,  Deputy, 

311  Railroad  companies,  Illinois 

I  have  duly  served  the  ^^'ithin  by  reading  the  same  to  the 

vnthin  named  railway  company,  by  reading  to 

agent  of  the  said  railway  company,  at   , 

Illinois,  and  at  the  same  time  delivering  to  him  a  true  copy 

thereof  as  I  am  therein  commanded,  this day  of 

19.  ,  The  president,  general  clerk,  clerk,  secretary,  super- 
intendent, general  agent,  cashier,  principal  director,  engineer  or 

conductor  not  found  in  mv  county  this dav  of 

19.. 


Sheriff. 


Mileage  $. 
Fees  . 


48  Mineral  Point  R.  Co.  v.  Keep,  111.  380,  .381   (1911);   Sec.  8,  Prac- 

22  111.  9,  15  (1859) ;  Sec.  8,  Practice  tice  act    (111.), 
act  1907   (111.).  48Miflland  P.  Rv.  Co.  v.  McDer- 

*7Booz  V.  Texas  &  P.  Ry.  Co.,  250  mid,  91  111.  170,  173  (1878). 


106  ANNOTATED   FORMS   OF   1'LE.U)1NG   AND   PRACTICE 

312  Township 

I  have  this  day  executed  the  within  writ  on  the 

within  named  defendant  the  town  of ,  personally,  by 

delivering  to ,  mayor  of  said  town,  a  true  copy  of 

this  writ,  this day  of ,  19.  . 

(Signatures) 

AMENDMENT 

313  Power  of  ofl&cer 

Until  process  is  actually  returned  to  the  clerk's  office,  the 
officer  has  power  to  amend  it  without  leave  of  court.^* 

314  Power  of  court,  notice 

A  court  has  power  to  permit  the  sheriff  to  make  an  amend- 
ment to  his  return  of  a  summons  before  or  after  judgment. 
Before  the  expiration  of  the  term  leave  may  be  granted  to  the 
sheriff  without  notice.  After  the  term  has  expired  the  amend- 
ment may  be  made  upon  reasonable  notice.^*^ 

315  Nature  of  amendment 

A  defective  return  of  process  is  amendable  according  to  the 
fact  notwithstanding  that  the  amendment  might  defeat  a  pro- 
ceeding by  motion  in  the  nature  of  a  writ  of  error  covam  nobis 
or  any  other  suit,  which  is  founded  upon  the  original  return. •'^^^ 

316  Person  to  amend 

The  person  who  made  the  original  ser\'ice  and  the  original 
return  is  the  one  to  amend  it,  although  he  is  out  of  office.^- 

PRACTICE 

317  Quashing  summons 

A  motion  to  quash  the  return  of  a  summons  on  account  of 
want  of  service  is  inappropriate  after  an  insufficient  plea  in 
abatement  has  been  disposed  of  on  substantially  the  same 
grounds.  Nor  is  such  a  motion  proper  before  pleading  in  abate- 
rs Nelson  v.  Cook,  19  HI.  440,  455  =i  Spencer  v.  Rickard,  71  S.  E. 
(1858).  711,  712  (W.  Va.  1911):  McCIure- 
50  Chicago  Planning  Mill  Co.  v.  Mabie  Lumber  Co.  v.  Brooks,  46  W. 
Merchants'  National  Bank,  86  HI.  Va.  732,  734  (1899). 
589 ;  Morris  v.  School  Trustees,  15  52  Waite  v.  Drainage  District,  226 
111.  266,  269,  270  (1853);  Rucker  v.  111.  207,  212  (1907). 
Harrison,  6  Munf.  181  (Va.  1818). 


PROCESS  107 

ment,  as  it  amounts  to  a  waiver  of  the  right  to  so  plead.^^  ^ 
deiendant  does  not  waive  his  rights  under  a  motion  to  quash 
summons  and  to  dismiss  suit  by  pleading  in  bar  of  the  action 
pending  a  decision  upon  a  motion,  if  the  pleading  is  merely  a 
denial  of  all  liability  and  is  provisional.^^  A  motion  to  quash 
a  summons  must  indicate  upon  which  writ  the  quashal  is  sought 
where  two  or  more  writs  have  been  issued.^^  Upon  quashing 
a  summons,  a  tinal  judgment  should  be  entered  against  the 
plaintiti'  for  costs.^" 

318  Alias  summons 

An  alias  summons  should  not  issue  after  the  original  has 
been  quashed.  But  if  an  "alias"  summons  does  issue,  it  will 
be  regarded  as  the  commencement  of  a  new  suit.^^ 

319  Amendment 

The  omission  to  name  the  form  of  the  action  in  a  summons 
is  not  a  substantial  defect;  ^^  and  the  objection  may  be  obviated 
by  an  amendment.^"  So,  it  is  permissible  U)  allow  an  amend- 
ment of  the  summons  to  conform  to  the  praecipe.**" 

PUBLICATION 

320  Pre-reqvusites 

Before  a  person  can  be  served  by  publication,  he  must  be 
made  a  party  to  the  proceeding.^! 

321  Affidavit 

being  first  duly  sworn  on  oath  deposes  and  says : 

That  this  affiant  is  the  attorney  for the  plaintiff 

hereinbefore  named ;  that  the    railroad  company, 

an  Illinois  corporation,  is  the  owner  of  certain  right  of  way,  track 

and  propertv  with  the  county  of ,  aforesaid ;  that 

there  has  been  returned  into  the  office  of  the  circuit  court  clerk 
Qf  county,  a  summons  duly  issued  out  of  said 

53  Locomotive  Firemen  v.  Cramer,  »« Chester    &    T^   ^  /    R.    Co.    v. 

164  111    9    15   (1896).  Lickiss,  72  111.  521,  523   (1874). 

5*  Sallee  v.  Ireland,  9  Mich.  155,  s*  Chester   &   T.    C.   &   R.   Co.   r. 

158    (1861)  Lickiss,  supra. 

« Cheney'  v.  Citr  National  Bank,  eo  Thompson    v     Turner     22    lU. 

77  111.  562,  564  (1875).  390;  Sec.  1,  c.  7,  Kurd's  Stat.  1909. 

56  Rattan  v.   Stone,  3  Scam.   540,  p.  154. 

541   (1«<42).  "People   v.    Dunn,   247   111.    410, 

6T  Rattan  v.  Stone,  supra.  413  (1910). 


108  ANNOTATED    FORMS    OF    PLEADING    AND    PRACTICE 

office  in  said  cause,  with  the  following  return  of  service  thereon: 

"I  return  this  suniinons  not  served  as  to  tlie  defendant 

railroad  company,  because  1  cannot  find  in  this  county, 

the  president,  nor  any  clerk,  secretary,  superintendent,  general 
agent,  cashier,  principal  director,  engineer,  conductor,  station 

agent,  or  any  agent  of  the  said railroad  company, 

this day  of ,  I'J.  . 

,  Sheritf." 

That  said  affiant  made  diligent  inquiry  and  upon  sueli  in(iuiry 
states  that  neither  tiie  president  of  said railroad  com- 
pany, nor  any  clerk,  secretary,  superintendent,  general  agent, 
cashier,  principal  director,  engineer,  conductor,  station  agent,  or 
any  other  agent  of  said  railroad  eompany,  can  be  found  within 

the  saitl  county  of so  that  process  could  be  served 

upon  them,  or  either  of  them;  that  in  making  said  intjuiry,  said 

afiiant  has  inciuired  of   the  passenger  and  ticket 

agent  of railroad  company,  at  ,  Illi- 
nois, of ,  the  chief  clerk  in  the  office  of  the  supeiin- 

tendent  of  the railroad  company,  at , 

Illinois,  of ,  the  head  physician  in  the  employ  of 

the voluntary  relief,  and  of ,  an  at- 
torney at  law  connected  with  the  firm  of ,  attorneys 

at ,  Illinois,  as  he  is  informed  and  believes,  for  the 

railroad  company,  and  that  none  of  said  pai'ties 

could  or  would  give  this  atfiant,  the  name  of  any  person  in  the 
employ  of  the  said  railroad  company,  or  in  any  way  connected 
with  the  said  railroad  company,  upon  whom  legal  service  could 
be  had. 

That  this  affiant  is  informed  and  believes  that  the  principal 

place  of  business  of  the  said railroad  company  is 

at , county,  Illinois. 

That  this  affidavit  is  made  for  the  purpose  that  service  may 

be  had  upon  said railroad  company  by  publication, 

in  accordance  with  the  statute  in  such  case  made  and  provided. 

And  further  affiant  sayeth  not. 


Subscribed,  etc. 

322  Notice 

Affidavit  that  the  said    railroad  company,   an 

Illinois  corporation,  is  the  owner  of  certain  right  of  way,  track 

and  other  property  within  the  county  of ,  and  that 

neither  the  president,  nor  any  clerk,  secretary,  superintendent, 
general  agent,  cashier,  principal  director,  engineer,  conductor, 
station  agent,  or  any  other  agent  of  said  railroad  company,  can 

be  found  within  the  county  of ,  having  been  filed 

in  the  office  of  the  clerk  of  said  circuit  court  of 

county. 

Notice  is  hereby  given  the  said   railroad  com- 


PROCESS  109 

pany,  an  Illinois  corporation,  one  of  the  defendants  above  named, 

that  the  plaintiff has  tiled  his  suit  in  said  court 

on  the  common  law  side  thereof,  on  the day  of , 

19..,  charging  the  said  defendants  with  trespass  on  the 
ease,  and  that  a  summons  thereupon  issued  out  of  said  court 

against  said  defendants,  returnable  on  the day  of  the 

term  thereof,  to  wit,  on  the day  of 

,  19. .,  as  is  by  law  required ;  and  said  summons 

having  been  returned  by  the  sheriff  not  served  as  to  the  said 
above  named   railroad  company. 

Now,  therefore,  unless  you,  said  railroad  com- 
pany, an   Illinois  corporation,  shall  be  and  appear  before  the 

said  circuit  court  of county,  on  the day 

of  the  next  term  thereof,  to  be  holden  at  the  court  house  in  the 

city  of   in  said  county,  on  the   day  of 

,   19..,  and  plead  or  demur  to  the  plaintiff's 

declaration,  tlie  same,  and  the  matters  and  things  therein 
charged  and  stated  will  be  taken  as  confessed,  and  a  judgment 
entered  against  you. 

In  witness  whereof,  etc. 


Circuit  court  clerk. 

323  Certificate  of  mailing 

I,   ,  clerk  of  the  circuit  court  of   

county,  in  the  state  aforesaid,  do  hereby  certify  that  on  the  .... 

day  of ,  19.  .,  being  within  ten  days  after  the 

first  publication  of  the  notice  hereunto  appended,  I  sent  by  mail, 

postage  prepaid,  a  true  copy  of  said  notice  to   

railroad  company,  defendant,  at ,  Illinois. 

Witness  mv  hand  and  the  seal  of  said  court,  this   

day  of ' ,  19.  . 


Clerk. 
(Attach  notice) 

324  Proof 

State  of  ]  gg 

County  of  \ 

The    (which   is  incorporated  and  doing  busi- 
ness under  and   by   virtue   of   the   laws   of    ) , 

hereby  certifies  that  it  is  the  printer  and  publisher  of  the 
which  is  a  public  newspaper,  printed  and  pub- 
lished daily  in  the  city  of   ,  in  said  county  and 

state  aforesaid.  Said  company  further  certifies  that  the 
accompanying  notice,  entitled  "Notice  to  nonresidents,"  dated 
the day  of ,  19 .  . ,  and  signed  by 


110  ANNOTATED    FORMS   OF    PLELVDING    AND    PRACTICE 

has  been  published  four  different  times,  and  suc- 
cessive weeks  in  the  said   ;  that  is  to  say,  in  each 

and  every  copy  thereof,  printed  and  published  on  the  following 
respective  dates  to  wit:    (IiLsert  the  dates  of  publication). 

In  testimony  whereof,  the  said  company  has  caused  this  certifi- 
cate to  be  signed  by  its  president  and  secretar\'  and  attested  by 
its  corporate  seal,  in  accordance  with  the  provisions  of  its  by- 
laws, at  ,  this  day  of  . . 

19..  ^  ' 


By ,  President  of   said  corporation. 

(Corporate  seal) 
Attest : 

,  Secretary. 

DECLARATION 

325  Practice 

Actions  lor  the  recovery  of  any  debt  or  damages  may  be 
commenced  in  Michigan  by  original  writ  or  declaration."-  An 
action  of  assumpsit  against  a  municipal  corporation  may  also 
be  thus  commenced."^ 

CAPIAS 

326  Jurisdiction 

The  personal  actions  in  which  a  capias  may  issue  in  jMichi- 
gan  are:  actions  on  account  of  a  breach  of  promise  to  marry, 
actions  for  money  collected  by  public  officers,  actions  for  any 
misconduct  or  neglect  in  office  or  professional  employment,  and 
actions  for  fraud  and  breach  of  trust. "^^  In  actions  for  a  breach 
of  promise  to  marry,  the  defendant  is  subject  to  arrest  on  a 
capias  upon  the  conclusive  presumption  that  fraud  is  the  basis 
of  the  promise.''^  No  capias  can  issue  in  an  action  upon  an 
express  or  implied  agreement  growing  out  of  a  contract  of 
agency,  when  there  is  a  mere  failure  by  the  agent  to  pay  over 
a  balance  due  under  the  contract. ^^ 

62(9985),    C.    L.     1897     (Mich.)  Pennock    v.    Fuller,    41    Mich.    153, 

amended  in  1905.  p.  103.  155    (1879). 

63  Menominee  V.  Circuit  Judge,  81  es /„    re    Sheahan,    25    Mich.    145 

Mich.     577     (1890).       See    Chapter  (1872). 

^l?;«n«^v     ^  66  People  V.  McAllister,  19  Mich. 

6«(9996),    C.    L.    1897    (Mich.);  215,  217  (1869). 


PROCESS 


111 


327  Practice 

The  practice  in  suits  commenced  by^  capias  is  fixed  by  statute 
and  must  be  strictly  followed.*^" 

AFFIDAVrr 

328  Nature  and  scope 

.Vn  affidavit  for  a  capias  ad  respondendum  is  merely  for  *^® 
purpose  of  requiring  the  defendant  to  give  security  for  the  debt 
upon  which  the  suit  is  brought,  and  is  in  no  sense  a  pleading 
in  the  case.^* 

329  Requisites 

In  an  aflidavit  to  hold  to  bail,  all  of  the  facts  and  circum- 
stances constituting  the  ground  or  grounds  upon  which  a  capias 
is  sought  must  be  stated  in  detail  and  as  within  the  personal 
knowledge  of  the  affiant.""  The  affidavit  should  specihcally 
allege  in  what  way  or  to  what  extent  the  plaintiff  is  damaged. 
It  is  not  necessary  to  attach  to  the  affidavit  or  to  the  writ  of 
capias  documentary  evidence  of  the  facts  which  are  within  the 
affiant's  own  knowledge  and  so  stated  in  the  affidavit.'  In 
Virginia,  the  code  requires  this  affidavit  to  be  signed  only  by 
the  court  in  which  the  case  is  pending  or  the  judge  thereof  m 
vacation  or  a  justice  of  the  peace.'- 

330  Form,  absconding,  Virginia 

Thi^  dav  appeared  before  me,   ^ 

and  made 'oath,'  and  showed  to  my  satisfaction  that  in  a  suit  now 


pending  in  the    .-,    court   for  the 

h*»twppn  plaintiff,   and    . ,    ,  ^      ,     i. 

.he  said  plain,.ff  has  cause  of  a^'t-n  a.ains,  the  sa.d  defendan 


sa.u  P-;-  7,;,  ;|;r„  i,  p,oh,hle  cause  tor  believing  that 

the  said  defendant  is  about  to  quit  this  state,  ""'«'«  h'=.''ff«''*f- 

with  apprehended ;  it  is  therefore  hereby  directed  that  the  sa,d 

.      . .  be  held  to  bail  in  the  sum  of dollars. 


Given,  etc. 


"People   V.   McAllister.   19  Mich.      sec.  2991. 
217;    Sheridan   v.   Briggs,   53   Mich. 
669,  571   (1884). 


112  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

331  Form,  assault  and  battery 

being  duly  sworn,  deposes  and  says  that  he  is  a 

resident  of  of  in  said  county  of 

,  and  that  on  the day  of , 

19 . . ,  at  the   of    in  the  county  of 

and  state  of , ,  late  of  the 

of   ,  with  force  and  arras  accosted 

and  violently  attacked  this  deponent  upon  the  street  in  the  city 

of  of  ,  where  this  deponent  then 

was,  and  without  any  provocation  whatever,  then  and  there  un- 
lawfully laid  hold  of  this  deponent  and  with  great  force  and 
violence  knocked  him  down,  and  with  his  hands  and  feet  dealt 
this  deponent  several  violent  blows  upon  his  head,  face,  and 
other  parts  of  his  body,  and  gouged  the  eyes  of  this  deponent, 

and  then  and  there  with  force  and  arms  in  and 

upon  him,  this  deponent,  did  make  an  assault  and  did  beat, 
bruise,  wound,  ill-treat,  and  commit  an  assault  and  battery  upon 
this  deponent,  by  reason  whereof  this  deponent  became  and  was 
sick,  and  was  disabled  from  attending  to  his  affairs  and  business 

for  a  long  space  of  time,  to  wit,  for  tlie  space  of 

then  next  ensuing,  and  suffered  p:roat  bodily  pain  and  menial 
distress,  and  in  consequence  of  such  beating,  bruising,  wounding 
and  ill-treating  this  deponent  was  compelled  to  and  did  expend 
a  large  sum  of  money  in  procuring  medicines,  medical  aid,  and 
nursing,  and  was  thereby  damaged  by  loss  of  business  and 
expenditures  of  money  in  restoring  himself  to  health  and  cur- 
ing himself  from  the  injuries  so  inflicted,  and  in  mental  distress 

and  bodily  pain,  in  a  large  amount,  to  wit,  the  sum  of 

dollars.     ' 


Subscribed,  etcJ^ 


832  Form,  conversion 

of  the    of   in  said 

county  and  state,  being  duly  sworn  deposes  and 

saitii  that  he  is  in  copartnership,  with of  the  county 

of and  state  of with  whom  he  is  en- 
gaged in  the  business  at county  and  state  first 

aforesaid,  under  the  firm  name  and  style  of   ; 

that  he  makes  this  affidavit  as  well  in  behalf  of  said 

as  of  this  deponent,  and  that  he  is  personally  acquainted  with 
and  cognizant  of  the  facts  stated  and  set  forth  in  this  affidavit. 

And  this  deponent  saith  further  that  on  the day  of 

,  19. .,  said and  one 

purchased  a  certain  horse  known  as  and  one 

'8  Pease  v.  Pendell,  57  Mich.  315 
(1885). 


PROCESS  113 

wagon  (or  any  other  property),  for  the  sum  of 

dollars  of  which  said paid ,  and  the 

said paid  the  remainder,  by  which  said  purchase 

said    became   the   owners   of  said   property   in 

undivided  moieties. 

And  this  deponent  further  saith  that  on  or  about  the  day  of 
,  19 .  . ,  the  said took  said  prop- 
erty into  his  possession  and  agreed  with  said that 

he  would  pay  the  keeping  of  said  horse  for  the  use  of  the  same. 

Ajid  this  deponent  further  saith  that  on  or  about 

the day  of ,  19 .  . ,  this  deponent,  in  con- 
versation with  said asked  him,  said 

to  put  said  horse  into  the  hands  of  some  competent  person  to  be 

fitted  for  trotting,  and  that  said told  this  deponent 

to  go  to   

And  this  deponent  further  saith  that  on  or  about  said 

day  of ,  19.  .,  with  the  intent  to  defraud 

said    and  said    said    

secretly  disposed  of  said  property,  and  now  refuses  to  account, 
or  to  pay  said for  their  interest  therein. 

And  this  deponent  further  saith  that   in   conversation  with 

said on  the day  of ,  19 .  . , 

the  said told  this  deponent  that  said  property  was 

gone,  and  that  this  deponent  might  whistle  for  his  interest  there- 
in, for  he  could  never  have  a  cent  for  tiie  same. 

And  this  deponent   further  Siiith  that  said    ., 

at  the  time  said  property  was  so  aforesaid  disposed  of  by  said 

,  owned  an  undivided interest  therein, 

and  that  the  value  of  said  undivided was 

dollars : 

And  this  deponent  further  saith  that  he  verily  believes  that 

upon  the  aforesaid  facts  said   have  a  good  cause 

of  action  against  said in  an  action  of  trespass  on 

the  case,  and  claim  damages  in  the  sum  of dollars. 


Subscribed,  etc."^^ 


333  Form,  false  representations    (Illinois) 

,  being  first  duly  sworn,  doth  depose  and  say  that 

he  is  the  agent  and  attorney  of  the  firm  of of  the 

said  county  and  state,  which  firm  is,  and  for  more  than  a  year 
last  past  has  been,  composed  of and 

Deponent  further  says  that  one  is  indebted  to 

the  firm  of for  merchandise  consisting  of  (Describe 

property)  which  were  sold  and  delivered  by  the  said , 

from  .  .' ,  19 .  . ,  to ,  19 .  . ,  to  the  said 

74  Wilcox  V.  Ismon,  34  Mich.  268, 
269   (1876). 


114  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

at  his  special  instance  and  request,  in  the  sura  of   

dollars  ($ )  ;  that  said  ainuunt  is  now  due 

and  unpaid,  and  that  said  lirm  of is  about  to  com- 
mence a  suit  in  assumpsit  at  law,  in  the  circuit  court  of 

county,  in  the  state  of  Illinois,  for  the  recovery  of  the  amount 

so  due  from  the  said to  the  said as 

aforesaid. 

Deponent  further  says  that  the  said  debt  was  fraudulently 

contracted  by  the  said   in  this,  that  prior  to  the 

sale  and  delivery  of  any  of  the  merchandise  for  which  the  said 

is  indebted  to  the  said as  aforesaid, 

he,  the  said ,  did,  on  the day  of , 

19. .,  make  and  deliver  to  the  said in  order  that 

he  might  obtain  credit  from  said ,  a  certain  state- 
ment, partially  written  and  partially  printed,  of  his  respecta- 
bility, wealth,  mercantile  correspondence  and  connections,  which 
statement  was  signed  by  the  said ,  and  which  state- 
ment alleged  that  the  representations  therein  made  were  to  be 

the  basis  of  any  credit  that  he,  the  said   ,  might 

require  during  a  period  of  one  year  from  the  date  thereof,  and 
which  statement  was,  at  the  time  of  the  making  thereof,  false 
and  untrue  in  the  respects  hereinafter  set  forth. 

Deponent  further  says  that  said  statement  alleged  that  he, 
the  said ,  was,  on  its  date,  the  owner  of  merchan- 
dise and  other  personal  property  of  the  value  of  

dollars  ($ ),  which  said  statement  this  deponent  says 

was  untrue  in  this,  that  said  merchandise  and  other  personal 

property  then  owned  by  the  said was  not,  at  that 

time,  worth  more  than  dollars  ($ ). 

Deponent  further  says  that  said  statement  alleged  that  he,  the 

said  ,  at  the  date  of  the  making  thereof,  was  the 

owner  of  first  mortgage  notes  and  bonds  which  were,  at  that 

time,  good  and  collectible,  of  the  face  value  of 

dollars  ($ ),  which  said  statement  deponent  says  was 

untrue    in    this,    that    the    said    notes   of    the    face    value    of 

dollars  ($ )  were  not  in  fact  secured 

by  first  mortgages,  but  that  of  said  notes,  notes  of  the  face  value 

of dollars  ($ )  only  were  then  secured 

by  first  mortgages,  and  that  of  the  said  first  mentioned  notes, 

notes  of  the  face  value  of dollars  ($ ) 

only  were  then  secured  by  second  mortgages;  and  that  the  notes 
so  secured  by  first  and  second  mortgages  as  aforesaid  were  the 

only  notes  which  the  said   then  had  which  were 

secured  by  mortgages  of  any  kind,  and  that  the  said 

did  not,  at  the  date  of  said  statement,  have  any  notes  represent- 
ing the  balance  of  said dollars  ($ ) , 

to  wit, dollars  ($ ).  and  that  he  did 

not,  at  said  time,  have  or  own  any  bonds  whatever. 

Deponent  further  says  that  all  of  the  notes  which  were  secured 
as  aforesaid,  and  which  the  said had  at  the  time 


PROCESS  115 

of  making  said  statement,  were  hypothecated  by  him  within 

days  alter  the  making  of  said  statement,  and  that 

Baid  secured  notes  never  were  worth  to  exceed    per 

cent  of  their  face  value. 

Deponent  further  says  that  the  said  statement  alleged  that 

the  said at  the  time  of  the  making  thereof,  owed 

to  grocers  for  merchandise  not  due  the  sum  of  

dollars  ($ ),  which  said  statement  said  deponent  says 

was,  at  that  time,  untrue  in  this,  that  he,  the  said , 

then  owed  for  merchandise  to  grocers  and  others  at  least  the 

sum  of dollars  ($ ). 

Deponent  further  says  that  said  statement  alleged  that  he, 

the  said ,  at  the  time  of  the  making  thereof,  owed, 

in  addition  to  said dollars  ($ )  therein 

mentioned,  only  the  sum  of dollars  ($ ), 

which  statement  was  untrue  in  this,  that,  in  addition  to  the 
indebtedness  of  the  said as  set  forth  in  said  writ- 
ing, there  was  at  that  time  and  now  is  outstanding  and  in  full 
force  and  effect,  a  certain  judgment  which  was  recovered  against 

him  in  favor  of    ,  in  the    court  of 

county,  on  the day  of ,  1 .  . . ,  for 

the  sum  of  dollars  ($ ),  and  costs 

of  suit,  and  that  there  was  due  and  unpaid  on  the    

day  of   ,  1 .  .  .,  upon  said  judt,nnent  and  for  costs  and 

interest   thereon,   at    least    the   sum   of    dollars 

($ ),  and  that  said  sum  still  remains  unpaid ;  also  that 

on  the day  of ,  1 .  . . ,  the  wife  of  said 

recovered  against  him,  the  said ,  in  the 

court   of    county,    a   judgment   by    confession    for 

dollars  ($ )  and  costs  of  suit,  which 

judgment,  on  the  said day  of ,  1  •  •  • ,  remained 

in  full  force  and  ctTcct,  and  that  there  is  now  duo  upon  said 

judgment  at  least  the  sum  of dollars  ($......), 

which  still  remains  unpaid;  and  also  that,  on  the  last  mentioned 

date,  the  said    was  indebted  to   in 

the  further  sum  of dollars  ($ )  upon 

a  jud'jrnient  note  signed  by  him,  the  said    . ,  upon 

which  note  judgment  was  entered  by  confession  in  the 

court  of  county  on  the   day  of  •  • , 

1 . . . ,  and  that  the  amount  of  said  judgment  still  remains  unpaid ; 
and  that  also  that  at  said  time  he  was  indebted  to  his  stepson, 
whose  name  is  to  deponent  unknown,  in  the  further  sura  of  at 

least dollars  ($ ),  which  is  still  unpaid. 

This  deponent  further  says  that  the  said   has, 

since  the day  of ,  1  •  •  • ,  and  since  the  sale  and 

delivery  of  said  merchandise  to  him  as  aforesaid,  assigned  and 
disposed    of    his    property    with    intent    to    defraud  the    said 

;  that  about  the  day  of  ,  1  •  •  • . 

the  said  who.  at  that  time,  owned  and  was  con- 
ducting a  store  at  numbers   street,  in  the 


116  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

city  of ,  county  of and  state  of  Illinois, 

sold  the  contents  of  said  store  and  certain  horses  and  wagons 
used   in  connection   with   the   business  done   at  said   place,    to 

and  others;  that  the  consideration  for  said  sale 

was  a  note  for dollars  ($ )  and  also 

lots  in  the  village  of , county, 

;  that,  at  the  request  of  said ,  the  deed 

of   conveyance   to   siiid    lots   was   not   made   to   him,    the   said 

,  but  to  his  brother,    ,  and   that  no 

consideration  whatsoever   passed    from   the  said    

for  said  conveyjince,  and   that  the  title  to  said    

lots  is  now  in  the  said 

Deponent  further  says  that,  at  the  time  said    

made  snid  statements  which  are  herein  stated  to  be  untrue,  he, 
the  said   ,  knew  that  said  statements  were  untrue. 

Deponent  further  says  that  the  said  firm  of    , 

at  the  time  of,  and  after  the  making  ol'  said  statement,  and 
prior  to,  and  at  the  time  of  the  sale  and  delivery  of  said  mer- 
chandise by  them  as  aforesaid  to  the  said  ,  they, 

the  said ,  relied  upon  said  statement  and  believed 

that  the  matters  and  things  therein  set  forth  were  true,  and 

believed  that  the  said  was  possessed  of  the  assets 

therein  mentioned,  and  that  said  assets  were  of  the  value  therein 

stated,  ami  believed  that  the  liabilities  of  the  said 

were  as  therein  stated,  and  that  said  li;ibilitifs  were  not  greater 

than  as  therein  stated,  and  that,  so  believing,  the  said 

did  sell  and  deliver  to  the  said the  said  merchan- 
dise above  referred  to,  and  for  which  the  said is 

still  indebted  as  aforesaid. 

And  he  further  says  that  said  would  not  have 

sold  and   delivered   said   goods   and   merchandise,    if   the   said 

had  not  made  said  statement,   and   if  the  said 

had  not  believed  said  statement  and  the  matters 

and  things  therein  set  forth  to  be  true. 

Deponent  further  says  that  since  the day  of ., 

1 .  . . ,    the    said     has    never    notified    the    said 

or  any  one  on  their  behalf,  of  any  change  in  his 

financial  condition ;  'that  said is  utterly  insolvent 

and  was  insolvent  on  the day  of ,  1 . . . ,  when 

said  statement  was  made,  and  has  at  all  times  since  said  time 

been  insolvent,  and  that  he,  the  said ,  knew  at  the 

time  he  made  said  statement,  that  he  was  insolvent  and  that  his 
debts  and  liabilities  were  largely  in  excess  of  his  assets. 

Deponent  further  says  that  if  the  said   should 

recover  a  judgment  against  him,  the  said   ,  in  a 

suit  which  the  said   are  about  to  commence,  that 

such  judgment  could  not  be  collected  on  execution. 

Deponent  further  says  that,  since  the  making  of  said  state- 
ment, and  the  sale  and  delivery  of  said  goods  and  merchandise, 
the  said  has  made  an  assignment  in  the  county 


PROCESS  117 

court  of county ;  and  this  deponent  states,  on  inves- 
tigation, information  and  belief,  that  the  estate  of  said . 

in  said    court  will  not  pay    cents  on  the 

dollar. 


Subscribed,  etc. 


Order 


The  clerk  of  the  oircuit  court  is  hereby  directed  to  issue  a 

cajyias  ad  respondendum  in  favor  of et  al.,  herein 

before  named,  and  against ,  the  said 

to  give  bail  in  the  penal  sum  of dollars,  upon 

the  plaintiff,- ,  giving  bond  in  the  penal  sum  of 

dollars. 


Dated,  etc. 


Judge court. 

(Michigan) 

being  duly  sworn,  deposes  and  says  that  he  is 

the   agent   of    and    copartners   as 

and  doing  business  as  such  in  the  city  of , 

in  the  state  of  Michigan,  and  as  such  agent,  on  behalf  of  said 

,  makes  this  affidavit,  and  deposes  and  says  that 

of  the  city  of  ,  was  at  said  city  lately 

engaged  in  the  retail  trade  of   and  had  there  a 

stock  of   and  deponent  was  then  and  there  the 

agent  and  traveling  salesman  for  said  firm  of ,  as 

aforesaid,  and  said  made  application  to  deponent 

and  desired  to  purchase  on  credit  a  bill  of  goods  for  his  said 
stock  and  store  aforesaid.     Thereupon,  and   l)efore  taking  the 

order  of  said    and   giving   him   credit   therefor, 

deponent,  in  behalf  of  said    desired  to  know  of 

said  what  his  financial  circumstances  then  were, 

and  what  property  said   then  had,  and  what  his 

ability   to  pay   for  the  goods  deponent   should  thereafter  sell 
and  deliver  to  him,  said 

"Whereupon,  said ,  for  the  purpose  of  procuring 

from  said   a  bill  of  goods  through  this  deponent 

as  agent  and  salesman  for  said ,  and  for  the  pur- 
pose of  obtaining  credit  for  a  period  of days  with 

said  firm  of ,  then  and  there  stated  to  this  depo- 
nent, that  he,  the  said then  had  a  stock  of  goods, 

consisting  of    ,   of  the   value   of    

dollars,  and  that  he  had  on  that  day,  to  wit, paid 

the  last  dollar  he  owed   for  his  said  stock,  and  said  he  had 

dollars  cash  on  hand,  and  did  not  owe  one  dollar 

to  anybody,  and  was  out  of  debt. 


118  ANNOTATED   FORMS  OP   PLEADING  AND   PRACTICE 

And  depyonent,  believing  such  statement,  so  made  to  Iiiui  as 
aforesaid  as  true,  did  make  known  the  same  to  tlie  said  tirm  of 

.  and  there  and  then  did  sell  on  credit  and  take  the 

order  of  said and  communicated  the  same  to  said 

firm  of ,  who  thereupon,  believing  said  representa- 
tions, and  relying  upon  the  representations  and  report  thereof 

made  by  deponent,  then  and  there  did  deliver  to  said 

goods,  consisting  of ,  of  the  value  of 

dollars. 

Deponent  further  says  that  said  statement,  so  made  as  afore- 
said by   to  deponent,  was  made  for  the  express 

purpose  and  with  the  intent  to  defraud  said   of 

said  bill  of  goods  of  the  value  of    dollars  as 

aforesaid;  that  said  representations,  when  so  made,  were  false 

in  every  particular,  and  said knew  the  same  were 

absolutely  false,  and  knew  that  he  did  not  liave  a  stock  of  goods 

of  the  value  of dollars,  and  knew  that  the  same 

did  not  exceed  in  value dollars,  and  knew  that  he 

was  not  out  of  debt,  and  knew  that  he  was  indebted  in  a  large 
sum  of  money  to  divers  persons,  firms  and  corporations,  and 
had  not  paid  all  his  indebtedness  on  said  stock,  and  did  owe  a 

large  amount  for  said  stock,  and  did  not  have  on  hand 

dollars  in  money,  and  knew  that  he  could  never  pay  for  said 
bill  of  goods,  and  then  knew  that  he  never  intended  to  pay  for 
the  same,  and  knew  tiiat  he  intended  to  cheat  and  defraud  said 
of  the  same. 

Deponent    further   says   that  soon   after   said    

ordered  and  received  said  bill  of  goods  he  sold,  assigned  and 
transferred  his  entire  stock  of  goods  to  ,  the  con- 
sideration for  which  said  sale  and  transfer  was  a  prior  indebt- 
edness, and  for  the  purpose  of  defrauding  the  said  

And  this  deponent  further  says  that  he  verily  believes  that 

upon  the  aforesaid  facts  said  have  a  good  cause 

of  action  against in  an  action  of  trespass  on  the 

case,  a.s  stated  in  annexed  writ,  and  claims  damages  in  the  sura 
of dollars. 


Subscribed,  etc."^ 

BOND 

334  Creditors 

Know  all  men  by  these  presents,  that  we 


of  the  county  of and  state  of  Illinois,  are  held  and 

firmly   bound   unto    of    county    and 

state  aforesaid,  in  the  sum  of dollars,  to  be  paid 

to  the  said   ; .   executors,  administrators  or  assigns, 


75  Hatch    V.    Saunders,    66    Mich. 
181,  183  (1887). 


PROCESS  119 

for  which  payment  well  and  truly  to  be  made,  we  bind  ourselves, 
jointly  and  severally,  and  our  respective  heirs,  executors  and 
administrators,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  this day  of , 

19.. 

Whereas,  the  above  bounden 

has  filed  in  the  circuit  court  of county,  and  state  of 

Illinois,  his  certain  affidavit  for  the  arrest  of  the  above  named 

And  whereas,  honorable ,  one  of  the  judges  of 

said  court,  has  indorsed  an  order  under  his  haiid  on  said  affida- 
vit, directing  the  clerk  of  said  court  to  issue  a  capias  ad  respon- 
dendum for  the  arrest  of  the  said  

upon  the  said    

giving  bond  and  security  as  provided  by  law : 

Now,  therefore,  the  condition  of  the  above  obligation  is  such, 
that  if  the  above  bounden  

shall  prosecute  the  above  mentioned  capias  with  effect  and  with- 
out delay,  and  pay,  or  cause  to  be  paid  to  the  said  


his  heirs,  executors,  administrators  or  assigns 


all   such    costs   and    damages   that    may    be   sustained   by    the 
wrongful  suing  out  of  such  capias 

then  the  above  obligation  to  be  void ;  otherwise  to  be  and  remain 
in  full  force  and  virtue. 

Approved  this ] 

day  of ,  19. .  WSignatures  and  seals) 

Clerk.J 

335  Sheriff 

Know  all  men  by  these  presents,  that  we 


of  the  county  of and  state  of  Illinois,  are  held  and 

firmly  bound  unto  ,  sheriff  of county, 

in  the  state  of  Illinois,   in   the  sura  of    dollars, 

lawful  money  of  the  United  States,  for  the  payment  of  which 

sum,  well  and  truly  to  be  made  to  the  said sheriff 

as  aforesaid,  or  his  successors  in  office,  executors,  administrators 
or  assigns,  we  hereby  jointly  and  severally  bind  ourselves,  our 
heirs,  executors  and  administrators. 

Witness  our  hands  and  seals,  this day  of 

19.. 


120  ANNOTATED   FORMS  OF   PLEADING   AND   PKACTICE 

The  condition  of  this  obligation  is  such,  that  whereas,, 


ha     lately  sued  out  of  the court  of county 

a  certain  writ  of  capias  ad  respondendum,  in  a  certain  plea  of 
against 

retuniahlo  to  tlie  next  term  of  the  said  court,  to  be  hokU'U  at  the 

court  house,  in  the  city  of ,  in  said  county,  on  the 

Monchiy  of next. 

Now,  if  tlie  siiid  

shall  be  and  appear  at  the  said  court,  to  be  holden  at 

aforesaid  on  tlie  saiil  Monday  of  next; 

and,  in  case  the  said   

shall  not  be  rcceivetl  as  bail  in  the  said  action,  shall  put  in  good 
and  sufficient  bail,  which  shall  be  received  by  the  i)laintift'     ,  or 

shall  be  adjudged  sufficient  by  the  court,  or  the  said 

being   accepted 

as  bail,  shall  pay  and  satisfy  the  costs  and  condemnation  money, 
which  may  be  rendered  against  the  said 

in  the  plea  aforesaid,  or  surrender  the  bod      of  the  said 


in  execution,  in  case  the  said 

shall      pay  and  satisfy  the  siud  costs  and  condemnation  money, 

or  surrender in  execution,  when,  by  law,  such  surrender 

is  required,  then  this  obligation  to  be  void ;  otherwise  to  remain 
in  full  force  and  eft'ect. 

(Signatures  and  seals) 

WRIT 

336  Service 

The  service  of  a  writ  of  capias  ad  respondendum  may  be  by 
arrest  and  imprisonment  until  judgment,  by  arrest  and  taking 
bail,  or  by  arrest,  reading  of  the  writ  and  release  without  tak- 
ing bail."*^ 

337  Form,  Florida 

State  of  Florida, 

To  all  and  singular  the  sheriffs  of  the  state  of  Florida : 

You   are  hereby   commanded  to   take 

if be  found  in  your  county,  and safely  keep, 

so  that  you  have    .  . .' body  before  the   judge  of  our 

court,  for county,  at  the  court  house  in 

76  McNab  V.  Bennett,  66  HI.  157, 
161  (1872)  ;  Sec.  3,  Practice  act  1907 
(111.). 


PROCESS  121 

forthwith,    to   answer  the  state 

of  Florida  for 

and  liave  then  and  there  this  writ. 

Witness  the    honorable     judge    of    our    said 

court,  and  the  seal  of  said  court,  this   

day  of  ,19.. 


Clerk. 


338  Form,  Illinois 

State    of    Illinois,)  ^^ 
county,  f 

The  peopk'  of  the  state  of  Illinois,  to  the  sheriff  of    

county,  greeting: 

Whereas,    the    honorable    one    of    the    judges 

of  the  circuit  court  of luunty,  has  had  presented  to 

him  a  certain  affidavit  to  hold  to  bail and  the  Siud 

judge  having  endorsed  an  order  under  his  hand  on  said  affidavit 
directing  the  clerk  to  issue  a  capuis  ad  respoiuU  ndum  for  the 

arrest  of  said and  having  fixed  the  amount  of  bail 

at dollars,  jind  bond  and  si-curity  according  to 

the  act  in  such  case  made  and  |)rovided  liaving  been  given: 

You  are  therefore  commanded,  that  you  take  the  bod       of 

if    he    shall  be  found  in  your  county  and  safely 

keep  80  that       he     be  and  appear  Ix'fore  the  circuit  court  of 

county,  on  the day  of  the  term  thereof,  to 

be  holden  at  the  court  house,  in in  said 

county,  on  the   Monday  of  ,  19.  ., 

to  answer  unto 

in  a  plea  of 

to  the  damage  of  said  j^laintilV    as  is  said  in  tlie  sum  of 

dollars cents. 

And  have  you  then  and  there  this  wi'it,  with  an  endorsement 
thereon  in  what  maimer  you  shall  have  executed  the  same. 

Witness ,  clerk  of  our  said  court,  and  the  seal 

thereof,  at  ,  in  said  county,  this day  of 

,  19.. 

,  Clerk." 


(Seal) 


Return 


Pd M 

19 .  . ,  rec  'd  $ defendant 's  board  from 

19 .  . ,  to ,  19 .  . ,  inclusive. 

Executed  this  writ  by  reading  the  same  to  and  arresting  the 
body  of  the  within  named  defendant, ,  and  he  giv- 

'T  The   writ   flhould   hear   the   fol-       the    defendant    to    bail    in    the   sum 

lowinjj  endorsement  of  the  clerk  of      of   dollars. 

the  court:     "The  sheriff  will  hold  Clerk." 


122  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

ing  bond  for  his  appearance,  which  is  hereto  annexed,  I  have 

released  him  from  custody  this day  of ,  19. . 

Sheriff. 

By  ,  Deputy. 

339  Form,  Michigan 

State    of    Michigan,  }  gg 

County  of \ 

The  circuit  court  for  the  county  of 

To  the  sheriff  of  said  county,  greeting: 

In  the  name  of  the  people  of  the  state  of  Michigan,  you  are 

commanded  to  take    

if may  be  found  in  your  bailiwick  and 

safely  keep  so  that  you  may  have bod     before  the  circuit 

court  for  said at  the  court  house,  in  the 

of on  the day  of ,  10.  ., 

that  being  the  first  day  of  the  next  succeeding  term  of  our  circuit 

court,  to  answer  to  the  suit  of 

plaintiff     ,  against  the  said  

defendant    ,  in  an  action  of  trespass  on  the  case  for 

which  action  has  been  duly  commenced  in  our  said  court  against 

said  

defendant     ,  claiming  damages  to  the  amount  of 

dollars,  all  of  which  shall  then  and  there 

be  made  to  appear,  and  of  this  writ  make  due  return. 

Witness,  the  honorable   ,  judge  of 

the  circuit  court  for  the  county  of ,  this 

day  of in  the  year  of  our  Lord  one  thousand  nine 

hundred  and  .... 


,,  Clerk. 


Attorney  for  plaintiff. 


State    of    Michigan,  } 

County  of \ 

I,   ,  sheriff  of  the  county  of   ,  do 

hereby  certify  and  return  that  I  have  taken   

within   named   defendant     ,    whose   bod         I   have   ready   as 
within  I  am  commanded,  


Dated  at the day  of 

19.. 


.,  Sheriff. 


PROCESS 

Fees 

Service  of  capias *• 

Traveling  fees    

Disbursements    

Total  fees   ^  ■ 


123 


J3 


t 

o 


o 


•t:  >» 


c    «3 


C5  ^ 


C3 


T3  'O 


^.     =^  -r;  -c 


•^     O 


flc  .:a 


.^      S      >,        "    r— 


OS 


r2 
O 


4;   o   3 


3   c^ 


Ci 


9  o 


^ 


.O 


BAIL 


340  Arrest,  nature 

An  arrist  upon  a  capias  is  equivalent  to  service  of  it  as  a 
summons  where  the  defendant  is  released  on  common  bail.^^ 


341  Jurisdictional  defects,  waiver 

Jurisdictional  defects  in  the  affidavit  are  not  waived  by  put- 
ting in  special  bail  and  pleading  in  the  eauae.'^* 


342  Bail  piece,  waiver 

Sureties  waive  the  right  to  have  bail  pieces  delivered  to  them 
at  the  time  of  giving  the  bail  bond,  by  failing  to  call  for  them.s^ 


343  Bond,  validity 

A  bail  bond  in  the  name  of  the  under-sheriff  will  be  treated 
as  a  bond  to  the  sheriff  himself,  and  is  valid." 


TsWann  v.   M'Ooon,  2   Scam.   74,  so  Wilcox  v.   lamon,  34  Mich.  268, 

77    (1849).  271   (1876). 

T»/n  re  Stephenson.  32  Mich.  60,  "i 

61   (1875).  271. 


Wilcox  V.  iBmon,  34  Mich.  268, 


124  ANNOTATED    FORMS   OF    PULAXUNG    AND    PRACTICE 

344  Bond,  liability 

The  liability  of  the  bail  rests  upon  the  ease  made  by  the 
affidavit,  and  none  other."- 

345  Objections 

And  now  come  the  plaintiffs  in  the  above  entitled  cause,  by 

,  their  attorney,  and  except  to  tiie  sufficiency  of  the 

bail  and  the  bail  bond  heretofore  fjiven  by  the  defendant  to  the 

sheriff  of county,  in  order  that  he,  the  defendant. 

might  be  released  from  arrest  uncb-r  the  capias  ad  respondendum 
issued  in  said  cause,  and  for  cause  of  exception  say. 

1.  Said  bail  bond  is  not  in  conformity  with  the  statute  in 
such  case  made  and  provided,  in  that,  in  the  conditions  thereof, 
the  word  "not"  is  omitted  between  the  words  "shall "and  "pay" 
in  the  second  line  from  the  bottom,  before  the  signatures  thereto; 
which  omission  relieves  the  bail  from  surrendering  the  body  of 
the  defendant  in  execution  in  case  the  defendant  sliould  not  pay 
and  satisfy  tiie  easts  and  eondemnation  money,  or  surrender  him- 
self in  execution  when  by  law  such  surrender  is  required. 

2.  Said  bail  is  insufficient  in  that  the  surety  is  a  person  of  lit- 
tle or  no  property  beyond  the  real  estate  scheduled  before  said 
sheriff  at  the  time  he  took  said  bond,  which  said  real  estate  i3 
incumbered  for  its  full  value. 

3.  Said  bail  and  bail  bond  are  in  other  respects  uncertain  and 
insufficient,  and  afford  no  security  to  the  plaintiffs  in  said  cause. 


Plaintiff's  attorneys. 

DEFENSES 


346  Irregularities 

The  mere  misnaming  of  an  action  does  not  render  a  writ  of 
capias  invalid  if  the  form  of  the  action  is  sufficiently  disclosed 
from  the  affida^•it  for  the  writ.^^  The  defense  that  the  plaintiff 
is  misnamed  in  a  writ  of  capias  ad  respondendum  must  be  raised 
by  plea :  not  by  motion.^'* 

347  Motion  to  quash  writ 

And  now  comes  the  said  defendant,  in  his  own  proper  person 

and  by his  attorney,  and  moves  the  court  to  quash 

the  writ  of  capi<is  ad  respondendum  heretofore  issued  in  this 
cause,  and  to  discharge  the  bail  bond  therein,  and  that  the  said 

82  Fish  V.   Barbour,   43   Mich.   25.  ^*  "Watson    v.    Watson,    47    Mich. 

83  Pease  v.  PendeU,  57  Mich.  315,      427,  429  (1882). 
317   (18S5). 


PBOCESS  125 

writ  be  ordered  to  stand  as  a  summons,  only.  And  for  cause  of 
said  motion  the  said  defendant  shows  the  foUowing:     1.     The 

afSdavit  of   ,  filed  in  said  cause,  and  upon  which 

the  said  capias  ad  respondendum  was  issued,  is  irregular,  imper- 
fect, informal  and  insuflBcient ;  2.  The  facts  stated  in  said  affi- 
davit are  not  true;  3.  Said  affidavit  and  proceedings  based 
thereon  are,  in  other  respects,  informal,  uncertain  and  insuf- 
ficient. 


Defendant's  attorney. 
Defendant. 

JUDGMENT 

348  Discontinaance 

As  against  the  defendant,  the  failure  of  the  plaintiff  to  file 
his  declaration  within  the  statutor>'  period  works  a  discontinu- 
ance of  a  suit  coinineneed  by  capias,  without  the  entry  of  a  rule 
or  an  order  declaring  the  discontinuance,  unless  the  defendant 
has  waived  the  objection  by  pleading  and  proing  to  trial;  but 
as  atrainst  the  bail  the  renewal  of  jurisdiction  by  waiver  is 
ineffectual,  for  the  defendant  has  no  power  to  waive  the  lapsed 
suit  for  the  bail.** 

•s  Fish  v.  Barbour,  supra. 


PART  II 
PLEADING  AND  PHACTICE 


CHAPTER   XI 
RULES   OF   COURT 

IN  GENER.\L  COURTS 

85  55 

349  Power  of  court,  nature  354  Circuit   courts 

350  Rules,  requisites  355  County  courts 

351  Interpretation  356  Superior  court  of  Detroit 

352  Application,  discretion  357  Supreme  court.  Michigan 

353  Judicial  notice 

IN  GENERAL 

349  Power  of  court,  nature 

EvL-ry  court  of  riM-unl  has  an  inherent  or  a  statutory'  power 
to  prescribe  reasonable  niU*  for  the  regulation  of  practice  be- 
fore it.*  The  power  to  prescribe  rules  for  the  eomluct  of  the 
business  of  a  court  is  judicial  in  its  nature,  and  not  legislative. 
Thus,  the  requirement  of  abbreviated  forms  of  orders,  is  a 
judicial  act.- 

350  Rules,  requisites 

Hubs  of  practice  arc  like  Icfri.slative  enactments:  they  must 
be  reasonable;  they  must  be  in  writing;  they  must  not  be  retro- 
active; they  must  U-  entered  of  record  for  a  reasonable  time  to 
become  known ;  ^  and  they  must  be  uniform.  A  rule  of  practice 
which  is  inconsistent  with  the  general  law  is  void  and  of  no 
effect.* 

351  Interpretation 

The  trial  court's  interpretation  of  its  outi  rules  of  practice 
will  be  followed  by  re\'iewing  courts  in  the  absence  of  a  clear 

1  Lanca-.tor  r.  Waukcpnn  A-  9.  W.  'Owem  v.  Ranstead    22  T1W61. 

Br.  Co..  132  111.  492.  493  (1890);  174  (1859):  "'""•»  C??.  Co  v. 
si.  12  c.  37.  Hurd's  Stat.  1909,  Haskins.  ^5  m. '^0'^'  '^^V  ^J?  ?iV 
p.  664;  Wnllbawm  v.  Raskin,  49  111.  «  Fisher  v.  National  Bank,  73  lU. 

ilS.  315    (1868).  34.   38    (1874). 

»  Chirago  v.  Coleman,  254  111.  338, 
841  (1912). 

129 


130  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

violation,  disregard  or  iniscouceptiou  of  these  rules  by  the  nisi 
prills  court."*  A  court  which  has  authority  to  and  does  establish 
rules  of  court  is  their  best  interpreter." 

352  Application,  discretion 

A  court  has  no  discretion  in  the  application  or  in  the  enforce- 
ment of  its  own  rules  of  practice,  except  when  allowed  by  the 
rules  themselves.^ 

353  Judicial  notice 

A  reviewing  court  does  not  take  judicial  notice  of  the  rules 
of  practice  of  the  trial  court.® 

COURTS 

354  Circuit  courts 

In  ^Nliehigan  the  Circuit  court  rules  are  made  by  the  supreme 
court  under  statutory  authority." 

355  County  courts 

A  county  court  has  power,  in  Illinois,  to  establish  rules  of 
practice  for  the  pui-pose  of  facilitating  its  business.'" 

356  Superior  court  of  Detroit 

The  superior  court  of  Detroit,  Michigan,  has  no  power  to 
establish  general  rules  of  practice  without  the  approval  of  the 
supreme  court.^^ 

357  Supreme  court,  Michigan 

In  establishing  rules  of  practice  for  inferior  courts,  the  policy 
of  the  supreme  court  of  ^Michigan  is  to  cover  only  such  matters 
of  practice  which  have  not  been  touched  upon  by  the  legisla- 
ture.   Except  as  to  special  and  irregular  proceedings,  the  policy 

5  Stanton  v.  Kinsey,  151  HI.  301,  » Harper  v.  Murphy,  155  Mich. 
306    (1894).                                                     543,  545    (1909);    (205)   C.  L.   1897 

6  Mix  V.  Chandler.  44  HI.  174,  175       (Mich.). 

(1867);    Ettinghausen  v.   Marx,   86  lo  Holloway    v.    Freeman,    22    111. 

111.  475.  476   (1877).  198,  202  (1859). 

7  Illinois  C.  E.  Co.  v.  Haskins,  n  Wyandotte  Rolling  Mills  Co.  v. 
supra;  Lancaster  v.  "Waukegan  &  S.  Robinson,  34  Mich.  428,  436  (1876). 
W.  Rv.  Co.,  supra. 

8  Greer  v.  Young,  120  111.  184,  186 
(1887). 


RULES   OF    COURT  131 

of  Michigan  is  to  secure  uniformity  in  substantial  matters  of 
practice  in  all  tribunals  of  the  same  class ;  and  in  order  to  carry 
out  this  policy,  the  supreme  court  alone  has  been  given  the 
power  to  establish,  modify  or  amend  general  rules  of  practice. 
But  this  does  not  prevent  a  court  of  record  from  ordaining 
suitable  rules  upon  matters  of  practice  which  have  not  been 
regulated  by  the  legislature  or  the  supreme  court. ^^ 

12  Wyandotte  Rolling  Mills  Co.  ▼. 
RobiosoD,  supra. 


CH  A  I'T  ETx    XTI 
PLEADING    IN    (JENERAL 


LAW  GOVERXING 

§9 

358  Generally 

359  Illinois 

RULES  OF  PLEADING 

360  Rules  of  pleading    defined 

361  Nature  and  scope 

362  Application 

363  Changing  rules 

I'RINCIPLES 

364  Importance  of  principles 

365  Object  of  pleading 

366  Burden  of  proof 

367  Prima  facie  case  or  defense 

368  Averments,    nature   of 

369  Averments,     facts     and     con- 

clusions 

370  Argumentative 

371  Certainty 

372  Cumulative 

373  Departure 

374  Duplicity 

375  Evidence 

376  Particularity 

377  Traverse,  nature  and  scope 

378  Traverse,  special 

379  Traverse,    special    and    com- 

mon distinguished 

380  Traverse,  requisites 

381  Traverse,  admission 

SPECIAL  MATTER 

382  Aggravation,  new  assignment 

383  Demand 

384  Discharge  and  justification 


385  Forfeiture 

386  Foreign  laws 

387  Notice 

388  Ordinance,  judicial  notice 

389  Statutes,    exceptions    and    ex- 

emptions 

390  Statutes,  validity,  waiver 

COXSTRrCTTON   OF  PLEADING 

391  Presumption 

392  Admissions 

393  Doubtful  meaning 

394  Defects 

395  Irregularity        and        nullity, 

waiver 

396  Surplusage 

397  Words  and   phrases,  craftily 

398  Words  and  phrases,  petition 

PRACTICE 

399  Order  of  pleading 

400  Negligence 

401  Demurring  and  pleading 

402  Expiration   of   time,   leave  of 

court 

403  Precedents,  use  of 

404  Filing,  fees 

405  Rejecting     pleading,     motion 

and  order 

406  Striking  pleading  from  files 

407  Withdrawing    pleadings,    dis- 

cretion 

408  Withdrawing   pleadings,   peti- 

tion and  order 

409  Jury  room,  removal  of  plead- 

ings to 


132 


PLEADING   IN   GENERAL  133 

LAW  GOVERNING 

358  Generally 

Tlie  law  of  the  state  where  a  remedy  is  sought  controls  the 
mode  and  the  form  of  procedure,^  and  the  statute  in  force  when 
a  cause  is  tried  controls,  and  not  the  statute  when  the  action  is 
commenced.-  A  vested  right  is  not  interfered  with  by  chang- 
ing an  existing  remedy,^ 

359  Illinois 

Tlu'  (Mjiiimon  law  system  of  pleading  prevails  in  Illinois,  ex- 
cept as  it  has  been  modified  l)y  statutes  which  have  removed 
the  arbitrary  and  artificial  distinctions  of  tiie  old  system  of 
pleading,  but  left  unchanged  the  general  logical  arrangement, 
the  order,  the  structure  and  the  tonus  of  pleadings.'  By  the 
adoption  of  the  common  law,  neither  the  local  customs  of  Eng- 
land, nor  the  ancient  common  law  practice  are  included.^  All 
statutes  concerning  the  juris<^liction,  the  powers,  the  proceed- 
ings and  the  practice  of  courts  of  the  siime  class  or  grade  must 
be  of  general  and  uniform  ()j)cration." 

HULKS  OF  PLEADING 

360  Rules  of  pleading  defined 

The  ordinar>'  rules  of  pleading  are  mere  modes  prescribed 
or  permitted  by  the  courts  for  the  purpose  of  bringing  before 
them  all  of  the  facts  or  truths  which  ought  to  be  considered  in 
determining  the  ultimate  rights  of  parties.' 

361  Nature  and  scope 

Rules  of  pro<c.(liiigs  arc  adopted  to  expedite  the  business 
of  courts,  to  secure  certainty,  accuracy,  order  and  uniformity, 
in  the  disposition  of  public  justice.^ 

» Collins  V.  Manville.  170  111.  614,  Crane,    102    El.    249,    258    (1882); 

617    (1897);   Smith  v.  Whitaker,  23  Schroeder  v.    Merchants  &   Mechan- 

lU.  367   (1S60).  ics'  In.s.  Co..  104  111.  71,  77  (1882). 

2  Murphv  V.  Williamson,  85  111.  «  People  v.  Cosmopolitan  Fire  Ins. 
149.   151    (1877).  Co.,   246   111.  442.   446    (1910);    Sec. 

3  Monger  v.  New  Era  Ass'n.,  156  29,  art.  6.  Const.  1870  (Kurd's  Stat. 
Mich.  645,  651    (1909).  1909.  p.  67). 

♦  Pitts    Sons'    Mf^'.    Co.    v.    Com-  7  Cox  v.  Jordan,  86  HI.  560,  566 

mercial  Nat.  Bank.  121  HI.  5S2,  586  (1877). 

(1887)-    Bailov   v.   Vallov    National  8  Wisconsin  C.  R.  Co.  v.  Wieczorek, 

Bank,  127  111.  "332.  33S   (18s9).  151  111.  579,  586  (1894). 

» Hannibal    ft    St.    J.    R.    Co.    v. 


I'.i-i  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

362  Application 

Well  settled  rules  of  proceeding  should  not  be  disregarded 
where  their  applicability  is  plain  and  uu(|uestionable.^  When 
once  established,  rules  of  pleading  and  practice  should  be  fol- 
lowed in  all  like  cases.^*^ 

363  Changing  rules 

Courts  have  power  to  prescribe  or  permit  new  modes  of  plead- 
ing wherever  the  application  of  the  ordinary  rules  of  pleading 
and  practice  would  produce  injustice.^  ^ 

PRINCIPLES 

364  Importance  of  principles 

The  general  principles  of  pleading  may  be  more  safely  re- 
resorted  to  than  isolated  decisions  of  courts.' - 

365  Object  of  pleading 

The  object  of  pleading  is  to  produce  a  single  issue  upon  some 
subject  matter  in  dispute.'^ 

366  Burden  of  proof 

It  is  not  necessary  to  prove  more  than  a  party  is  required 
to  allege.'"*  Nor  is  it  necessary  to  prove  an  immaterial  aver- 
ment.'*'''  Whatever  one  of  the  parties  must  prove  under  his 
pleadings,  the  other  may  disprove.''^  The  party  who  holds  the 
affirmative  of  an  issue  has  the  burden  of  proving  it  by  a  pre- 
ponderance of  evidence.^"  A  criminal  charge  made  in  a  plead- 
ing of  a  civil  suit  must  be  proved  beyond  a  reasonable  doubt-'® 
The  proof  and  the  allegations  must  correspond.'^  Every  alle- 
gation which  is  descriptive  of  the  cause  of  action  must  be  proved 

9  Wisconsin  C.  R.  Co.  v.  Wieczorek,  is  Chicago  «S:  Alton  R.  Co.  v.  Vi- 
mpra.                                                            pond,  212  111.  199,  202   (1904). 

10  Cox  V.  Jordan,  86  HI.  566.  le  Chandler  v.  Lincoln,  52  111.  74. 

11  Cox  V.  Jordan,  supra.  76   (1869). 

12  Ross    V.    Nesbit,    2    Gilm.    252,  it  Mitchell  v.  Deeds,  49  HI.  420. 
257    (1845).  isMcInturff  v.   Insurance  Co.   of 

laNoetling  v.  Wright,  72  111.  390,  N.  A..  248  111.  92,  99  (1910). 

392   (1874).  19  Chicago  City  Rv.  Co.  v.  Bruley, 

14  Richards  v,  Jerseyville,  214  HI.  215  111.  464,  465  (1905). 
67,  69  (1905). 


PLEADING   IN    GENERAL  135 

as  alleged  in  the  pleading.^*^  An  objection  on  account  of  vari- 
ance between  the  allegation  and  proof  must  be  made  at  the 
eariiest  possible  moment,  when  the  variance  first  appears,  as  it 
is  waived  if  not  so  niade.-^  By  procuring  an  instruction  which 
directs  a  verdict  on  the  law  applicable  to  the  state  of  facts  that 
is  disclosed  by  the  evidence,  a  party  waives  his  right  to  object 
that  the  facts  proved  are  not  within  the  allegations  of  the  plead- 
ings.- 

367  Prima  facia  case  or  defense 

A  pleader  is  required  to  make  out  only  a  prima  facta  case  or 
defense; -3  and  in  presenting  his  side,  he  is  not  called  upon  to 
state  matters  which  come  more  properly  from  the  opposite  side 
or  which  are  within  the  adversary's  own  knowledge.  The  stat- 
ing of  a  general  right  is  sufficient  without  showing  the  existence 
of  an  exception  tlioreto  raised  by  law.  As  a  general  rule,  a 
matter  should  not  be  omitted  if  it  is  so  connected  with  a  party's 
case  or  defense  that  its  affirmation  or  donia]  is  essential  to  the 
validity  of  the  pleading,  when  taken  in  connection  with  all 
prior  pleadings  upon  the  record." 

368  Averments,  nature  of 

The  averments  of  ;i  i);irty's  cause  of  action  or  defense  must 
be  stated  truly. -^ 

369  Averments,  facts  and  conclusions 

Facts  ami  not  conclusions  must  be  alleged  in  a  pleading.-" 
In  alleging  facts,  the  ultimate  facts  alone  should  be  averred.-^ 

370  Argumentative 

A  pleading  must  not  be  argumentative.^s 

20  Wabash  R.  Co,  v.  Billings,  212  2s  Read  v.  Walker.  r>2  Til.  333,  335 
111.  37,  39   nor>4).  (1869). 

21  CTiicaeo  V.  Bork,  227  El.  60.  63  26  Fortune  v.  English.  226  111.  262, 
(1907);  Wabash  Ry.  Co.  v.  Billings,  268  (1907);  Waterbury  Nat.  Bank 
svpra.  V.   Reed.   231   111.   246,   250    (1907); 

22  Donk  Bros.  Coal  <Sr  Coke  Co.  v.  Lefkovitz  v.  Chicago,  238  111.  23,  30 
Stroetter,  229  111.   134,  138   (1907).  (1909). 

23  People    V.    Iloi-iplberg    Garden  27  Chicago  &  Eastern  I.  R.  Co.  v. 
Co..    2.'^3    111.    290,    296    (190S);    1  Kimmel,  221  HI.  547.  551    (1906). 
Chittv's  PI..   12th  Am,  ed..  r-  222.  28  Distillincr  &  Cattle  Feeding  Co. 

2*/fcid.,  222,  224.  V.  People,  1.^.6  111.  448,  483  (1895). 


136  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

371  Certainty 

The  cause  of  action  or  ground  of  defense  must  be  clearly  and 
distinctly  stated  so  that  it  might  be  understood  by  the  opposite 
party,  judge,  and  jury.29  An  averment  which  is  certain  to  a 
common  intent  is  sufficient.^^ 

372  Cumulative 

Pleadings  which  contain  literally  or  in  legal  effect  the  same 
matter  as  do  similar  pleadings  in  the  case  of  the  same  party 
mil  be  stricken  out;  but  before  striking  out  the  cumulative 
pleading  a  court  may,  in  its  discretion,  require  an  election  to  be 
made  on  which  pleading  the  party  desires  to  proceed.^i 

373  Departure 

The  allegations  of  the  pleader  must  be  consistent  with  each 
other.  Thus,  the  replication  must  support  the  declaration ;  the 
rejoinder,  the  plea.  No  direct  affirmative  or  denial  of  a  triable 
issue  can  be  attained  in  any  other  way.^^ 

374  Duplicity 

The  setting  up  of  two  or  more  distinct  and  sufficient  causes 
of  action  or  defenses,  either  of  which,  if  true,  would  necessitate 
a  finding  for  the  pleader,  constitutes  duplicity  in  a  pleading.33 
But,  a  pleading  will  not  be  regarded  as  double,  when  it  neces- 
sarily includes  statutory  elements;  as  where  the  statute  requires 
certain  distinct  jurisdictional  grounds  to  be  negatived  in  a  plea 
of  abatement.34  A  pleading  is  not  double  by  alleging  mere 
surplusage  or  facts  as  inducement ;  ^s  nor  does  an  immaterial 
averment  render  the  pleading  doublets  So  a  count  is  not  dou- 
ble which  merely  joins  several  causes  of  action  of  the  same 
nature.^'^ 

29  Chicago  City  Ey.  Co.  v.  Jen-  107  Va.  602,  610  (1907);  Wilson  v. 
nings,  157  111.  274,  277  (1895)  ;  Ohio  Gilbert,  161  111.  49,  52  (1896)  ;  State 
&  Mississippi  Ry.  Co.  v.  People,  149  v.  Commercial  Bank,  33  Miss.  474. 
111.  663,  666  (1894);  De  Forrest  v.  496   (1857). 

Oder,  42  El.  500,  502  (1867).  34  Deatrick  v.  State  Life  Ins.  Co  . 

30  Eddy    V.    Courtright,    91    Mich.      supra. 

264,  269   (1892).  35  State  v.  Commercial  Bank,   33 

31  People    V.    Central    Union    Tel.       Miss.   496. 

Co.,  192  m.  307,  309  (1901);  Parks  se  Lusk   v.    Cook,    Breese,    84,    85 

V.  Holmes,  22  HI.  522,  525  (1859).  (1824). 

32  Wiard  v.  Semken,  8  Mackey  479  37  Godfrey  v.  Buckmaster,  1  Scam. 
(D.  C.  1891).  447,  450   (1838). 

33  Deatrick  v.  State  Life  Ins.  Co., 


PLEADING   IN    GENERAL  137 

375  Evidence 

It  is  not  permissible  to  plead  evidence  and  immaterial  mat- 
ter, as  it  is  difficult  from  this  kind  of  a  pleading  to  ascertain 
what  portions  are  material  and  what  portions  are  immaterial, 
and  to  give  it  proper  consideration.^s  A  pleading  should  not 
aver  circumstances  which  merely  tend  to  prove  the  truth  of 
the  facts  stated;  it  should  solely  confine  itself  to  the  statement 
or  allegation  of  fact.^^  Enough  of  the  facts  to  be  relied  upon 
as  sustaining  the  cause  of  action  or  defense  must  be  alleged  to 
enable  the  court  to  determine  their  sufficiency.'*^  The  rule  that 
every  fact  which  is  necessary  to  be  proved  should  be  averred 
means  that  the  proof  must  find  its  foundation  in  the  pleading, 
but  not  that  every  distinct  fact  must  be  pleaded.^ ^  Nor  is  it 
necessary  to  so  plead  as  to  foreshadow  the  evidence  in  detail 
to  be  produced  in  support  of  the  pleading.^2 

376  Particularity 

Particularity  in  the  averment  of  time,  place,  number,  person 
and  amount  is  required  where  it  is  essential  to  the  right  of 
recovery  or  defense,  or  where  a  general  averment  would  put  the 
opposite  party  at  a  disadvantage ;  and  this  particularity  is  dis- 
pensed with  whenever  it  leads  to  prolixity.^^  ^  distinct  aver- 
ment of  time  is  necessary  to  every  material  fact,  except  where 
the  transaction  has  run  through  a  long  space  of  time,  or  there 
have  been  repeated  -vvrongful  acts;  in  which  event,  it  is  suffi- 
cient to  allege  that  the  transaction  or  the  acts  took  place  be- 
tween specified  dates.^^  The  mere  statement  of  amounts  in  a 
pleading  is  not  binding  unless  it  is  supported  by  a  traversable 
averment.'*^ 

377  Traverse,  nature  and  scope 

A  traverse  is  a  specific  denial  of  material  matter  in  issue  and 
is  either  common,  general,  or  special.  It  refers  to  pleas,  replica- 
tions and  subsequent  pleadings. 

38  People  V.  Payson,  210  HI.  82,  42  Griffing  Bros.  Co.  v.  Winfield, 
83  (1904).  53  Fla.  589   (1907). 

39  Campbell  v.  Hudson,  106  Mich.  «  Kipp  v.  BeU,  86  HI.  577,  580, 
523.  526    (1895);   People  v.  Pavey,  (1877). 

151  111.  101,  105  (1894).  44  Read    v.    Walker,    52    111.    333, 

40Willard   v.    Zehr,    215   HI.    148,  334  (1869). 
157  (1905).  45Lindley  v.   Miller,  67  111.   244, 

4iRae  v.'Hulbert,  17  111.  572,  578  248,  249  (1873). 
(1856). 


138  ANNOTATKD    P^ORMS   OF    PLEADING    AND    PRACTICE 

378  Traverse,  special 

The  essential  parts  of  a  special  traverse  are  the  inducement, 
the  denial  and  the  verification,  the  only  issuable  part  being  the 
denial  under  the  absque  hoc.  No  issue  of  fact  can  be  formed 
upon  the  inducement  when  the  denial  under  the  absque  hoc 
is  sufficient.^*' 

379  Traverse,  special  and  common  distinguished 

A  special  traverse  differs  from  a  common  travei*se  in  that 
the  special  traverse  explains  or  qualities  the  denial.^' 

380  Traverse,  requisites 

A  traverse  should  always  be  upon  some  affirmative  matter. 
A  negative  allcfjration  cannot  be  traversed ;  nor  can  one  nega- 
tive averment  be  traversed  by  another  negative.''*' 

381  Traverse,  admission 

All  traversable  allegations  made  by  the  opposite  party  are 
confessed  if  not  traversed.  This  rule  has  no  application  to  a 
dilatory  plea,  to  a  new  assignment,  nor  to  a  plea  in  estoppel.'*® 

SPECIAL  MATTER 

382  Aggravation,  new  assignment 

In  an  action  of  tort  for  an  original  wrong  and  for  subsequent 
consequences  which  are  alleged  as  matters  of  aggravation,  the 
defendant  is  not  required  in  the  first  instance,  to  answer  the 
matters  of  aggravation  without  a  new  assignment  by  the  plain- 
tiff, but  must  make  a  complete  answer  to  the  original  wrongful 
act ;  upon  the  defendant  pleading  to  the  original  wrongful  act, 
the  plaintiff,  if  he  desires  to  take  advantage  of  the  matters  of 
aggravation,  must  new  assign  for  them.^'^ 

383  Demand 

In  all  cases  in  which  it  is  necessary'  to  make  a  demand  before 
instituting  suit,  the  making  of  a  special  request  or  demand 
must  be  alleged  and  proved.^^ 

46  People  V.  Central  Union  Tel.  108  (1844);  People  v.  Crabb,  156 
Co.,  192  ni.  307.  312    (1901).  111.  15.5.  165   (1895). 

*t  People   V.    Central    Union  Tel.  so  McConnel  v.  Kibbe,  33  111.  180 

Co.,  supra,  (1864). 

*8  Rvan  V.  Vanlandingham,  25  HI.  si  Minor    v.    Miehie,    Walker    24, 

128   (i860).  29    (Miss.  1818). 

*»Dana   v.    Bryant,    1   Gilm.  104, 


PLEADING   IN   GENERAL  139 

384  Discharge  and  justification 

In  actions  of  tort,  matters  in  discharge  or  in  justification  of 
the  action,  must  be  specially  pleaded. ''-' 

385  Forfeiture 

Every  material  fact  which  is  necessary  to  constitute  a  for 
feiture  must  be  alleged.^^ 

386  Foreign^  laws 

Tlie  law  of  another  state  must  be  pleaded  and  proved  the 
same  as  any  other  fact,  before  the  full  faith  and  credit  clause 
of  the  Federal  constitution  can  be  invoked.^^ 

387  Notice 

A  general  allegation  that  a  "reasonable  notice,"  was  given 
is  objectionable  when  notice  is  necessary.  The  averment  of 
notice  must  show  tiiat  it  was  given  in  due  time  and  to  the 
proper  person.'"'' 

388  Ordinance,  judicial  notice 

A  municipal  ordinance  must  be  specially  pleaded  the  same 
as  any  other  matter  or  fact.  Courts  do  not  take  judicial  notice 
of  ordinances.*^" 

389  Statutes,  exceptions  and  exemptions 

Ordinarily,  a  pK-adint,'-  is  sutlicicnt  which  relies  upon  a  gen- 
eral provision  of  a  statute,  and  unless  atlirmatively  shown,  it 
is  presumed  that  there  are  no  exceptions  to  the  statute.^^  A 
pleading  which  is  based  upon  a  statute  containing  an  exception 
must  negative  the  exception  when  it  is  part  of  the  cause  of 
action  or  defense,  but  not  otherwise.*^®  An  exception  to  a  stat- 
ute excludes  in  express  terms  tlie  thing  excepted,  leaving  the 

52  Olsen  V.  I'psahl.  69  111.  27."^.  277  55  McCormick  v.  Tate,  20  111.  334, 
(1873);  Illinois  Steel  Co.  v.  Novak,      337  (1858). 

184   111.  501.  .502    (1900);    Hahn  v.  56  People    v.    Busse,    248    111.    11, 

Ritter.  12  111.  80.  83   (18.50).  16   (1910). 

53  Illinois  Fire  In«.  Co.  V.  Stanton,  67  Armstrong  v.  Wilcox,  57  Fla. 
57  HI.  354.  358   (1870).  30.  34    (1909). 

'-*  Leathe  v.  Thomas,  218  111.  246,  ss  WTiiter^raft  v.  Vanderver,  12  III. 

253     (1905);     Smith    v.    Whitaker,      235.238(1850). 
nipra. 


140  ANNOTATED   FORMS  OF   PLtL\DING   AND   PR.VCTICE 

Statute  as  before.  A  proviso  in  a  statute  only  exempts  the 
thing  within  the  statute  from  its  operation  under  certain  cir- 
cumstances, or  under  certain  conditions.^"  The  thing  exempted 
from  the  operation  of  a  statute  is  the  exemption.  No  special 
or  technical  words  are  necessary-  to  create  an  exception,  proviso, 
or  exemption.  An  exception  is  part  of  the  cause  of  action  or 
defense,  if  it  is  mentioned  in  the  enacting  clause  of  the  statute 
upon  which  the  action  or  defense  is  based.""  The  exception  is 
also  part  of  the  action  of  defense  when  it  is  not  a  separate  and 
distinct  clause,  but  it  is  incorporated  in  the  general  clause  of 
the  statute  conferring  the  right  of  action  or  defense.''^  If  a 
statute  contains  two  or  more  exceptions,  but  one  only  of  which 
is  covered  by  the  enacting  clause,  that  one  alone  must  be  nega- 
tived in  the  pleading;  the  other  or  others  are  matt^^rs  which 
have  to  be  set  up  by  the  opposite  party.'--  An  exemption  in  a 
proviso  to  the  enacting  clause,  or  in  a  subsequent  section  of  a 
statute,  is  matter  of  defense  to  be  alleged  l)y  the  opposite 
party.«3  A  party  who  relies  upon  an  exception  to  a  general 
statute  which  the  opponent  is  not  bound  to  set  forth  as  part  of 
his  case,  must  clearly  bring  himself  within  the  exception ;  «* 
and  this  is  a  rule  of  evidence  as  well  as  one  of  pleading.^^^ 

390  Statutes,  validity,  waiver 

The  <|uestion  of  the  validity  of  an  ordinance,  statute,  or  con- 
stitutional provision  is  waived,  unless  raised  by  the  pleadings 
and  presented  by  instructions  or  by  propositions  of  law  and 
the  right  is  insisted  upon  in  the  trial  court. •^•' 

CONSTRUCTION  OF  PLEADING 

391  Presumption 

A  pleading  will  be  construed  most  strongly  against  the 
pleader.*^  ^ 

09  Myers  v.  Carr,  12  Mich.  63,  71  Rv.  Co.  v.  Lavery,  71  111.  522  523 
(1863).  (1874). 

60  1    Chitty's    PI.,    12th    Am.    ed.,  63  Myers  v.  farr.  .9M;)ra 

p.  223;   Chicagro.  B.  &  Q.  R.  Co.  v.  C4  Wood  v.  Williams.  142  111    ^69 

Carter,  20  111.  390.  392  (1858);  Hy-  280    (1892);    Armstrong  v.   WUcox' 

man    v.    Bayne.    83    111.    256,    264  57  Fla.  34.                                             ' 

(1876);  Myers  v.  Carr,  supra.  os  Qsborn  v.  Lovell,  36  Mich    246 

61  Whiteeraft  v.  Vanderver,  supra.  249   (1877).                                            * 

62  1  Chitty's  PI.,  p.  223;  Great  «'•  People  v.  Harrison,  223  Dl  540 
W.  R.  Co.  V.  Hanks.  36  111.  281.  284  545   (1906). 

(1865);    Toledo,   Peoria  &  Warsaw  e?  Consolidated  Coal  Co.  v.  Peers, 


PLEADING   IN   GENER.VL  141 

392  Admissions 

A  party  is  bound  by  the  admissions  made  in  his  own  plead- 
ings, whether  the  admissions  are  expressly  made,  or  they  are 
raised  from  necessary-  implication.^^ 

393  Doubtful  meajiing 

The  meaning  that  is  most  unfavorable  to  the  pleader  will  be 
adopted  where  an  equivocal  allegation  is  susceptible  of  two 
meanings.^" 

394  Defects 

Defects  in  pleading  are  aided  by  the  pleadings  of  the  oppo- 
site party,  or  they  are  cured  by  the  statute  of  Amendments  and 
Jeofails,  or  by  intendment  after  pleading."^"  The  statute  of 
Amendments  and  Jeofails  does  not  extend  to  the  curing  of  de- 
fects which  are  clearly  matters  of  substanceJ*  At  common 
law,  a  vertict  cures  any  defect,  imperfection  or  omission  in 
pleading,  whether  of  sul)stanee  or  form,  which  would  have  been 
a  fatal  objection  upon  .demurrer,  if  the  issue  joined  was  such 
that  necessarily  required  oti  the  trial  proof  of  facts  so  defectively 
or  imperfectly  stated  or  omitted,  and  without  which  neither 
judge  nor  jury  could  have  given  the  verdict  or  judgment^-  Too 
general  averments  in  pleadings  are  cured  after  verdictJ^ 

395  Irregularity  and  nullity,  waiver 

An  irregularity  is  the  omission  to  do  something  which  is  nec- 
essary in  the  due  and  orderly  conduct  of  a  legal  proceeding, 
or  the  doing  of  something  necessary  in  a  proceeding  in  an  un- 
seasonable time  or  an  improper  manner,  but  which  is  capable  of 
waiver  by  the  party  affected  by  itJ*  A  nullity  is  a  proceeding 
which  is  taken  without  any  foundation  for  it,  or  which  is  essen- 
tially  defective   or   made  so   by  statute  and   is  incapable  of 

166  ni.  361.  .372  (1897)  ;  Fortune  v.  ti  Chicago  &  Alton  E.  Co.  v.  Clau- 

Enplish,  226  111.  269;  People  v.  Rose,  sen,  supra. 

L'54  111.  ;}32,  334   (1912);   People  v.  t 2  Chicago  &  Alton  R.  Co.  v.  Gau- 

Union  Gas  &   Electric  Co.,  254   111.  sen,     .supra;     Illinois     Terra    Cotta 

395,  414   (1912).  Lumber  Co.  v.  Hanley,  214  111.  243 

•'•State    V.   Commercial   Bank,    33  (1905). 

Miss.  495.  '3  Brunhild  v.  Chicago  Union  Trac- 
es Hall  i  pan  V.  Chicago  &  R.  I.  R.  tion  Co..  239   111.  621,  623    (1909). 

Co.    15    111.    r,5S.    560    (1S.54).  74  Turrill  v.  Walker,  4  Mich.  177, 

TO  Chicago  &  Alton  R.  Co.  v.  Clau-  183  (1856). 

sen,  173  111.  100,  103  (1898). 


142  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

waiverJ'^     Without  an  opportunity  to  waive  a  right,  there  can 
be  no  waiver.'*^ 

396  Surplusage 

Any  averment  which  amounts  to  mere  surphisarro  may  be 
entirely  disrej^archnl  with  rel'erencc  to  forming  an  issue  upon  it 
or  in  producing  evidence  to  substantiate  it."^ 

397  Words  and  phrases,  craftily 

The  words  "craftily,"  "fraudulently,"  "falsely."  and 
"maliciously,"  are  of  no  avail  in  the  absence  of  averments  of 
fact  to  which  they  properly  apply.'''® 

398  Words  and  phrases,  petition 

A  petition  is  common  to  law  and  chancerj'.'^® 

PRACTICE 

399  Order  of  pleading 

The  usual  and  regular  order  of  common  law  pleading  is  as 
follows:  on  behalf  of  the  plaintiff,  the  declaration,  the  replica- 
tion, or  new  assignment,  the  surrejoinder  and  surrebutter;  on 
behalf  of  the  defendant,  the  plea,  the  rejoinder,  the  rebutter, 
and  puis  darrein  continuance.  The  irregular  pleadings  are 
demurrers,  bills  of  exception,  scire  facias,  pleas  in  error.®''  It 
is  customary,  in  ^lississippi,  to  read  the  pleadings  to  a  jury  as 
the  opening  statement  of  the  case  or  defense.  It  is,  therefore, 
the  practice  of  a  good  pleader  to  draw  his  pleadings  so  that 
they  can  be  read  to,  and  readily  understood  by  the  jury. 

400  Negligence 

A  court  will  not  restore  a  party  to  a  legal  right  which  he  has 
lost  through  his  own  negligence. ®i 

76  Jenness  v.  Lapeer  Circuit  "« Fortune  v.  English,  226  HI.  269, 
Judge.  42  Mich.  469,  471   (1880).  79  standidge  v.  Chicago  Eys.  Co., 

76Munn  V.  Haynes,  46  Mich.  140,  254  lU.  524,  531    (1912). 

145  (1881).  80  1  Chitty's  PI.,  p.  239. 

77  Pennsylvania  Co.  v.  Conlan,  101  si  Chicago,  P.  &  S.  W.  R.  Co.  ▼. 
111.  93,  102,  103  (1881).  MarseUles,  107  lU.  313,  316  (1883). 


PLEADING  IN   GENERAL  143 

401  Demurring  and  pleading 

At  common  law  a  party  is  not  permitted  to  demur  and  to 
plead  to  the  same  matter,  either  at  the  same  or  at  different 
times,  and  thereby  to  present  two  distinct  issues  at  one  and  the 
same  time.*^ 

402  Expiration  of  time ;  leave  of  court 

Without  special  It-avc  ul"  court,  a  party  has  no  right  to  plead 
after  the  expiration  of  the  time  to  plead,  and  neither  the  oppo- 
site party  nor  the  court  need  recognize  a  paper  which,  is  placed 
among  the  files  of  a  case  without  such  leave.®^ 

403  Precedents,  use  of 

It  is  not  necessary  to  use  the  precise  words  employed  in  an 
approved  precedent.  It  is  sufficient  to  use  other  equivalent 
words  conveying  precisely  the  same  meaning.** 

404  Filing,  fees 

A  party  who  has  an  instrument  to  file  in  an  office  and  pre- 
sents it  to  the  proper  officer  has  the  benefit  and  advantaf?e  of 
the  act  as  though  the  document  had  been  formally  filed,  and  the 
failure  to  advance  and  tender  the  fee,  when  not  demanded,  does 
not  deprive  him  of  this  benefit. *•' 

405  Rejecting  pleading,  motion,  Maryland 

8« now  comes  into  this  court  and  asks  the  court 

not  to  receive  the  paper  purporting  to  be  a  (replication)  to  the 

answer  of  said  tliis day  of , 

11).  .,  brouplit  into  thi.s  court  by long  after 

hearing  by  this  court  of  the  case  submitted  by  said 

on  his  petition  and  the  answer  of  said  ,  and  that 

said  paper  be  not  accepted  by  this  court  or  recognized  as  a  part 
of  the  proceedings  in  the  said  cause. 


Solicitor  for 


•2  Edbrooke  v.  Cooper,  79  Til.  .')R2.  "s  Dowie  v.  Chicago,  Waukegan  ft 

68.3   n87.5).  North  Shore  Ry.  Co.,  214  HI.  49,  54 

"3  Walter  Cabinet   Co.   v.   Russell.       (1905). 
250  111.  416.  419    (1911).  se  See  Section  211,  Note  60. 

«♦  Miller  v.  Blow.  fiR  111.  304.  309 
(1873);  Read  v.  Walker,  52  HL 
334. 


144  AJSfNOTATED    KOKVIS   OF    I'LtADlNG    AND    PRACTICE 

Order 

Upon  reading  and  considering  the  motion  of    

filed  on  the   day  of    ,  19 . . ,  asking 

the  court  not  to  accept  the  replication  of filed  on 

the  same  day,  after  the  hearing  of  the  motion  of  said 

filed  on  the day  of ,  19 . . ,  to  dismiss 

the  petition  of  said filed  on  the day 

of ,  19 .  . ,  it  is  ordered  by  the  court 

of county,  this day  of , 

19.  .,  that  the  said  (replication)  be  not  accepted  and  the  same 
is  hereby  rejected. 

406  Striking  pleading  from  files 

A  pleading  which  contains  evidence  and  immaterial  matter 
will  be  stricken  from  the  files  upon  motion,  and  the  pleader  will 
be  ruled  to  replead.**^ 

407  Withdrawing  pleadings,  discretion 

Neither  tiie  phiintitV  nor  the  del't-ndant  has  an  absolute  right 
to  withdraw  his  pleading's,  but  the  trial  court  may,  in  its  dis- 
cretion, permit  the  withdrawal  of  a  pleading.*^  Under  the 
liberal  Florida  statute  of  aniendmenls,  a  trial  court  has  ample 
power  to  permit  the  withdrawing  of  pleadings  and  to  grant 
leave  to  file  new  pleadings.®® 

408  Withdrawing  pleadings,  petition,  Maryland 

To  the  honorable,  the  judge  of  said  court : 

The  petition  of ,  the  defendant  in  the  above  en- 
titled case,  respectfully  shows  unto  your  honor: 

1.  That  the  above  case  was  instituted  in  this  court  by  the 

plaintitf  on  the day  of in  the  year  19 .  . , 

to  recover  certain  taxes  alleged  to  be  due  to  the  plaintitf  by  the 
defendant. 

2.  That  the  case  was  brought  to  the rule  day 

in  the  year  19. .,  and  the  defendant  duly  appeared  by  its  attor- 
neys, and  on ,  19.  .,  filed  two  pleas  to  the  declara- 
tion, to  wit,  the  general  issue  pleas  that  it  never  was  indebted 
as  alleged,  and  that  it  did  not  promise  as  alleged ;  on  which  pleas 
issue  was  joined  by  the  plaintiff. 

3.  That  defendant  now  wishes  to  withdraw  said  general  issue 

87  People  V.  Pavson,  210  HI.  82  (1865);  Ayres  v.  Kelley,  11  HI.  17 
(1904).  (1849),  overruled. 

88  New  England  F.  &  M.  Ins.  Oo.  89  Hartford  Fire  Ins.  Co.  v.  Red- 
V.  Wetmore,  32  lU.  221,  251  (1863);  ding,  47  Fla.  228,  245   (1904). 
Miles  V.  Danforth,  37  lU.  156,  163 


PLEADING  IN   GENERAL  145 

pleas,  and  to  plead  anew  by  filing special  pleas  to 

the  declaration  and  each  and  every  count  thereof,  and  prays  leave 
of  the  court  so  to  do. 

Wherefore,  the  defendant  prays  the  court  to  pass  an  order 
granting  it  leave  to  withdraw  its  pleas  heretofore  filed  in  this 
ease,  and  to  file  anew special  pleas  to  the  declara- 
tion and  to  each  and  every  count  thereof. 

As  in  duty,  etc. 


Attorneys  for  defendant. 


The  plaintiff  consents  to  the  passage  of  the  order  as  prayed 
for. 


Attorney  for  plaintiff. 
Order 


On  the  foregoing  petition  and  consent,  it  is  hereby  ordered 

this day  of ,  in  the  year  19 .  . ,  by  the 

court  of that  leave  be,  and  is  hereby  granted  to 

the  defendant  to  withdraw  the  general   issue  pleas  heretofore 

lili'd  by  it  in  this  ca.se,  anil  to  pkad  anew  by  filing 

special  pleas  to  the  deelaratiou  and  to  each  and  every  count 
thereof. 

Judge  of  the  court  of 

409  Jury  room,  removal  of  pleadings  to 

Upon  the  request  of  either  party  in  a  civil  action,  the  plead- 
ings may  be  sent  to  the  jury  room  upon  the  jury's  retirement. ^'^ 
Hut  the  practice  is  not  commendable.  Sending  the  pleadings 
to  the  jury  room  is  not,  however,  reversible  error.  Pleadings 
to  which  demurrers  have  been  sustained  should  not  be  per- 
mitted to  be  taken  to  the  jury  room.®^ 

»«  Ea.st    Dubuque   v.   Burhrtc,   173  «»  Elgin,  Aurora  &  Southern  Trac- 

111.    5.5.T,    S.'-.fi    (1898):    Hanchctt   v.      tion   Co.   v.   WUson,  217   111.   47,  56 
Haaa,  219  lU.  546,  548  (1906).  (1905). 


CHAPTER    XIII 


IN  GENERAL 


§§ 

410  Declaration   defined 

411  Allegation  and  proof 

412  Consistoncy 

413  Duplicity 

414  Variance,  waiver 

REQUISITES 

415  Title 

416  Parties,   minors,   generally 

417  Parties,   minors,   next    friend, 

authority  to  use  name  as 

418  Parties,  receivers 

419  Form  of  action 

420  Venue 

421  Jurisdiction 

422  Cause  of  action,  generally 

423  Cause   of   action;    conditions, 

performance 

424  Cause   of   action,   estoppel    in 

pais 

425  Cause  of  action,  incorporation, 

proof 

426  Cause  of  action,  interest 

427  Cause    of    action,    negativing 

defense,    surplusage 

428  Cause  of  action,  penalty 

429  Conclusion,  waiver 

430  Ad  damnum,  practice 

431  Signatures 

JOINDER  ANT)  MISJOINDER  OF 
COUNTS 

432  Several  counts  of  same  cause 

of  action 

433  Joinder  of  counts  of  different 

causes  of  actions 

434  Misjoinder  of  counts,  test 


DECLARATION 
5§ 


435  Election  of  counts,  practice 

436  Election  of  counts,  motion  of 

COMMENCEMENT      AND      CON- 
CLUSION 

ASHIMI'SIT 

437  District  of  Columbia 

438  Florida 

439  Illinois 

440  Maryland 

441  Michigan 

442  Mississippi 

443  Virginia 

444  West  Virginia 

CASE 

445  District  of  Columbia 

446  Illinois 

447  Maryland 

448  Michigan 

449  Mississippi 

450  Virginia 

451  West  Virginia 

COVENANT 

452  General    commencement    and 

conclusion 

DEBT 

453  District  of  Columbia 

454  Illinois 

455  Maryland 

456  Mississippi 

457  Virginia 

458  West  Virginia 


459  General    commencement    and 
conclusion 


146 


DECLARATION 


147 


u£ctme:vt 

SS 

460  Illinois 

461  Michigan 

462  Virginia 

KEPLEVI.V 

463  Illinois 

464  Michigan 

465  Mlssisfilppi 

TRESPASS 

466  District  of  Columbia 

407   Illinois  and  West  Virginia 

468  MiBsissippi 

TBOVEB 

469  Generally 

TABTIES 

470  Administrator 

471  Corporations 

472  Executor 

473  Forolgn  corporations 

474  Husband  and  wife 
476  Municipality 

476  Next  friend 

477  Nominal  plaintiff 

478  Partners 

479  People 

480  Railroad  company 

481  Receivers 

EXHIBITS 

482  Nature  and  effect 

483  Necessity 

484  Amendment 

AFFIDA\7T  OF  CLAIM 

485  Nature    and    effect,    presump- 

tion 

486  Optional 

487  Persons  making 

488  Requisites 

489  Filing 

490  Amendment 

491  Objections 

KILE  TO  PLEAD 

492  Practice 

493  Requisites 


S8 

494  Form 

495  Entry  of  rule 

NOTICE  TO  PLEAD 

496  District  of  Columbia 

497  Maryland 

498  Michigan 

DEMAND   FOR   JURY 

499  Election 

500  Notice 

PRAECIPE 

601  Maryland 

SERVICE 

602  Statute  of  limitations 
503  Service,  by  whom 

604  Proof,    requisites;    presump- 

tion 

605  Proof,  forms 

606  Proof,  contradicting 

FILING 

607  Time 

608  Delivery  to  clerk 

609  Dismissal   for   want  of  Narr., 

practice 

610  Dismissal,  motion 

611  Disniibsul,  cross-motion 

AMENDMENT 

512  Generally 

513  Ad  damnum 

514  Additional  count 

515  Immaterial   matter 

516  Parties,  discontinuance 

517  Statute  of  limitations 

PRACTICE 

518  Stipulation 

519  Notice,  necessity 

520  Notice,  form 

521  Motion  and  order 

522  Petition  and  order 

523  Additional    count,    commence- 

ment 

524  Amendment,  commencement 


148  ANNOTATED   FORMS  OF   PLEADING   AND  PRACTICE 

§§  §§ 

525  Notice  of  amendment  528  Averments,  material,  omission 

526  Effect  of  amendment  529  Delects  cured  by  verdict 

530  Form  of  action,  identity,  law 
CONSTRUCTION  and  fact 

527  Averments,     immaterial,    sur-      531  Good  and  defective  counts 

plusage  532  Several  declarations 

IN  GENERAL 

410  Declaration  defined 

A  declaration  is  a  written  statement  of  the  plaintiff's  cause  of 
action  to  appri.so  the  defendant  of  the  precise  nature  of  that 
cause  and  to  limit  the  plaintill 's  proof  thereunder.' 

411  Allegation  and  proof 

Every  material  fact  which  is  relied  upon  for  a  recovery  must 
be  averred  in  a  declaration,  as  no  proof  is  admissible  without  an 
averment  of  an  essential  fact.^  Allegations  of  a  declaration 
which  are  descriptive  of  what  is  material,  although  unnecessary, 
must  be  proved  as  stated,  unless  the  variance  is  waived  by  the 
defendant  or  it  is  cured  by  amendment.^  A  plaintiff  is  not 
required  to  plead  his  evidence."* 

412  Consistency 

A  pleader  will  not  be  permitted  to  occupy  inconsistent  posi- 
tions with  respect  to  the  same  matter  at  the  same  time.  If  he 
relies  upon  the  validity  of  an  ordinance,  it  is  inconsistent  for 
him  to  insist  that  the  ordinance  is  illegal  and  void  for  all  other 
purposes.-' 

413  Duplicity 

Duplicity  in  a  declaration  is  the  joining  in  one  count  of  dif- 
ferent grounds  of  action  of  different  natures,  or  of  the  same 

iCook  V    Scott,   1  Gilm.  333,  340  (1907);    Hatley   v.    Kiser,    253    111. 

(1844).  288,   290,   292    (1912). 

2  Toledo,  W.  &  W.  Rv.  Co.  v.  *  American  Car  &  Foundry  Co.  v. 
Beggs,  85  m.  80.  83   (1877).  Hill.  226  111.   227,  234    (1907). 

3  Wabash  R.  Co.  v.  Billings.  212  5  McEniry  v.  Tri-City  Rj.  Co.,  254 
111.  37  (1904);  Chicago  Union  Trac-  111.  99,  103   (1912). 

tion  Co.  V.  Hampe,  228  111.  346,  350 


DECLARATION  149 

nature,  to  enforce  a  single  right  of  recovery .<5    Mere  matters  ot 
inducement  do  not  amount  to  duplicity." 

414  Variance,  waiver 

A  declaration  must  pursue  the  writ  in  regard  to  the  Christian 
and  surnames  of  the  parties;  the  names  must  be  at  least  the 
same  in  sound.^  A  party  will  not  be  permitted  to  set  out  one 
cause  of  action  in  his  declaration  and  to  prove  an  entirely  dif- 
ferent cause  of  action.^  Variance  between  the  declaration  and 
the  proof  is  waived,  unless  objected  to  in  time  to  afford  an 
opportunity  to  amend  the  declaration.^" 

REQUISITES 

415  Declaration,  title 

Although  a  declaration  is  in  the  nature  of  process,  it  is  not 
process  within  the  meaning  of  the  constitutional  provision  requir- 
ing the  entitling  of  process  in  a  certain  manner;  and  neither  the 
declaration  nor  the  rule  to  plead,  in  suits  commenced  by  declara- 
tion, have  to  be  entitled  *In  the  name  of  the  people."  " 

416  Parties,  minors,  generally 

When  plaintiffs  are  minors  the  declaration  should  state  that 
they  appear  by  guardian  or  next  friend;  but  tlic  omission  to 
thus  state  their  character  is  cured  by  verdict. i'-' 

417  Parties,  minors,  next  friend,  authority  to  use  name  as 

13  To  the  honorable,  the  judge  of  said  court: 

I  hereby  authorize  and  direct  the  use  of  my  name  in  this  suit, 
as  the  next  friend  of 


0  Henrv  v.  Ileldmaier.  226  111.  152,  ">  Linqiiist  v.  Hodges,  248  111.  491, 

1.55    (1907);   Chicago  West  Division  497    (1911). 

Ry.   Co.   V    Ingraham,   131  111.   659,  "  Penfold   v.    Slyfield,    110    Mich. 

665   (1890).  34.'?,  345    (1896). 

7  Watson  V.  Watson,  49  Mich.  540,  isHelmuth   v.   Bell,    150   111.   263, 

.'542   (1883).  260    (1894). 

sSohoonhoven  v.  Gott.  20  111.  46.  is  See  Section  211,  Note  60. 
47   (1858). 

»  Republic  Iron  &  Steel  Co.  v.  Lee, 
227  111.  246,  257    (1907). 


150  ANNOTATKO    FORMS   OP    PLEADING    AND    PRACTICE 

418  Parties,  receivers 

In  an  action  against  a  receiver,  the  declaration  must  show 
the  obtaining  of  leave  of  the  court  in  which  the  receiver  was 
appointed,  to  bring  the  action. i-*  The  declaration  should  also 
describe  the  defendant  as  receiver,  and  not  merely  receiver. '^ 

419  Form  of  action 

A  declaration  should  follow  the  writ  upon  the  character  or 
form  of  the  action  and  the  extent  of  the  demand.^** 

420  Venue 

It  is  proper  practice  to  set  forth  truly  the  place  where  the 
contract  was  entered  into  or  tlie  liability  incurred  and  to  aver 
under  a  videlicet  that  such  place  is  within  the  eomity  wherein 
the  suit  is  pending;  but  this  allegation  i.s  not  traversable  if 
untrue  in  point  of  fact,  because  by  a  fiction  of  law  all  transitory 
actions  are  supposed  to  arise  in  the  county  where  the  action  is 
brought.^"  In  transitory'  actions,  the  venue  is  sufficiently  alleged 
by  giving  the  county  alone.' ^  The  want  of  venue  in  a  declara- 
tion is  not  fatal  if  the  cause  is  tried  in  the  proper  county.^® 

421  Jurisdiction 

Unless  questioned  by  plea  in  abatement,  a  declaration  is  good 
where  only  a  portion  of  the  cause  of  action  set  forth  is  within 
the  jurisdiction  of  the  court.^o  In  transitory  actions,  where 
summons  has  been  or  is  to  be  issued  to  a  foreign  county,  it  is 
not  necessary  to  aver  in  the  declaration  that  the  plaintiff  resides 
in  the  county  in  which  the  action  has  been  commenced,  and  that 
the  cause  of  action  has  accrued  in  such  county .21 


"St.    Louis,    A.    &   S.    R.    Co.   v.  (1874);       (10272),      C.      L.      1897, 

Hamilton,  158  111.  366,  369    (1895).  subdn.    11    (Mich.). 

15  Wilcke  V,  Henrotin,  241  111.  169,  20  Diblee  v.   Davison,   25   111.   486 

174   (1909).  (1961). 

18  Weld  V.  Hubbard,   11  111.   573,  21  Kenney  v.  Greer,  supra;  Gillian 

575  (1850).  V.  Gray,  14  111.  416   (1853);  Water- 

17  Kenney  v,   Greer,   13   111.   432,  man    v.    Tuttle.    18    111.    292,    293 
447,  448   (1851).  (1857);    Key    v.    Collins,    1    Scam. 

18  Read  V.  Walker,  52  El.  333,  335  403,    404    (1837).    overruled;    Clark 
(1869).  V.    Clark,    1    Gilm.    33,    34    (1844), 

i»  Grand   Rapids   &   I.   R.   Co.   v.  overruled ;    Semple   v.    Anderson,    4 

Southwick,     30     Mich.     444,     446  Gilm.   546    (1847),   overruled. 


DECLARATION  151 

422  Cause  of  action,  generally 

A  plaintiff  must  show  a  complete  cause  of  action  at  the  time 
he  brinors  suit,  and  not  afterwards.-^  The  declaration  must 
allege  all  of  the  circumstances  that  are  necessary  for  the  sup- 
port of  the  action.  A  declaration  which  fails  to  allege  a  fact 
without  which  the  plaintiff  is  not  entitled  to  recover,  does  not 
state  a  cause  of  action.-^  The  beginning  of  a  suit  does  not  stop 
the  running  of  the  statute  of  limitations,  unless  the  declaration, 
or  some  count  therein,  states  a  good  cause  of  action.-*  Like- 
wise a  declaration  which  omits  an  essential  element  of  a  cause 
of  action  will  not  arrest  the  running  of  the  statute  of  limita- 
tions.-^ The  mere  restatement  of  a  cause  of  action  with  greater 
particularity  is  not  the  stating  of  a  new  cause  of  action  justify- 
ing a  plea  of  the  statute  of  limitations.-"  A  declaration  must 
not  set  up  facts  in  avoidance  of  the  statute  of  limitations;  as 
a  declaration  thus  framed  tenders  a  double  issue.^^ 

423  Cause  of  action;  conditions,  performance 

If  any  a«-t  is  to  be  done  by  tiie  plaintiff  before  the  accruing  of 
the  defendant's  liability,  the  performance  of  that  act  must  be 
averred.-^  In  actions  ex  contractu,  a  total  denial  of  liability,  or 
refusal  to  perform  on  other  grounds,  waives  a  party's  right  to 
insist  upon  performance  of  conditions  precedent  to  the  pay- 
ment of  money  or  other  performance  on  his  part.^^  Perform- 
ance or  its  equivalent,  or  a  legal  excuse  for  non-performance, 
must  be  averred  and  proved  in  actions  upon  an  entire  express 
contract,  but  not  in  actions  upon  several  contracts  embracing 
independent  obligations,  nor  in  an  action  upon  an  implied  agree- 
ment arising  from  an  entire  or  severable  contract  which  was 
partially  performed  and  part  performance  of  which  was  volun- 
tarily accepted  by  the  other  party  with  knowledge  of  the  breach.^o 

424  Cause  of  action,  estoppel  in  pais 

Matters  arising  fom  an  estoppel  in  pais  are  no  part  of  the 

22Hovey  v.  Sebring,  24  Mioh.  232,  =7  Gunton  v.  Hughes,  181  111.  132, 

234   (1872).  135    (1899). 

:3  Walters  v.  Ottawa,  240  111.  259,  =8  Walters  v.  Ottawa,  supra. 

264    (1909)  29  Lohr  Bottling  Co.  v.  Ferguson, 

24  Walters  v.  Ottawa,  fnipra.  223  111.  88,  93   (1906). 

25Bahr  v    National   Safe  Deposit  30  Harber     Bros.     Co.     v.     Moffat 

Co..  234  ni.  101.  104  (1908).  Cycle  Co.,  151  111.  84   (1894). 

2«  Hagen  v.  Schleuter,  236  III.  467, 
470,  471   (1908). 


152  ANNOTATED   FORMS  OF   PLEADING    AND   PRACTICE 

cause  of  action  and  need  not  be  specially  alleged  or  pleaded  at 
law.^i 

425  Cause  of  action,  incorporation,  proof 

In  ordinary  actiuns,  an  aveniunt  that  the  plaintiff  is  a  cor- 
poration is  sustained  by  proof  that  it  is  exercising  corporate 
rights  and  privilege's.^^ 

426  Cause  of  action,  interest 

Inhitst  upon  aii  indebtedness  is  not  recoverable  without  either 
an  aviTiiunl  of  a  demand  or  tlie  statement  of  facts  which  would 
justify  the  allowance  of  interest  before  the  coimuencemeut  of 
the  suit.^"* 

427  Cause  of  action,  negativing  defense,  surplusage 

At  law,  as  distinguished  from  e(iuity,  a  plaint ilY  is  not  required 
to  negative  a  defense  in  his  deelanition.  All  that  the  plaintiflP 
must  do  is  to  state  his  cause  of  action  or  complaint.  Auytliing 
stated  by  him  in  anticipation  of  a  possible  defense  is  regarded 
no  surplusage ;  and  generally,  cannot  i)e  taken  advantage  of  by 
demurrer.^* 

428  Cause  of  action,  penalty 

In  east's  where  the  parties  aprree  upon  a  penalty  as  the  men.sure 
of  damages  it  is  not  necessary  that  the  declaration  should  spe- 
cially declare  for  the  penalty,  because  such  a  penalty  is  an  inci- 
dent to  and  follows  the  principal  in  the  same  manner  as  does 
interest.  But  in  regard  to  contracts  upon  conditions  and  eases 
in  which  the  law  imposes  a  penalty,  such  penalty  must  be  claimed 
specifically  in  the  declaration  to  authorize  its  recovery.^* 

429  Conclusion,  waiver 

The  conclusion  of  a  declaration  is  not  a  substantive  fact ;  it 
is  traversable  as  a  proposition  of  law  alone,  and  it  is  waived  by 

81  Dean    v.    Crall,    98    Mich.    591,  34  Lesher  v.  United  States  Fidelity 

594  (1894).  &  Guaranty   Co.,  239  111.   502,   508 

32  Mitchell  V.   Deeds.  49  111.   416,  (1909). 

422  (1867).  •■«5  Smith  v.  Whitaker,  23  Dl.  312 

33Whittemore  v.  People.  227  111.  (1860). 
453,  475    (1907). 


DECIARATION  153 

pleading  instead  of  deniurring.3«  The  averment  that  an  act  was 
done  contrary  to  the  form  of  the  statute,  etc.,  is  essential  in,  and 
is  contined  to  actions,  upon  penal  statutes.^'  But,  in  an  action 
upon  a  remedial  statute,  it  is  not  necessary  that  the  declaration 
should  conclude  against  the  form  of  the  statute.^* 

430  Ad  damnum,  practice 

The  amount  laid  in  the  declaration  limits  the  plaintiff's  recov- 
erj'.^**  The  ad  dumnum  should  appear  at  the  end  of  the  declara- 
tion and  not  at  the  close  of  each  count.*" 

431  Signatures 

A  declaratiun  signed  by  the  surnames  of  a  partnership  of 
attorneys,  omitting  their  proper  names,  is  sufficient.** 

JOINDKR  AND   MI.^^JOINDER  OF  COUNTS 

432  Several  counts  of  same  cause  of  action 

The  same  cause  of  action  may  be  stated  in  several  counts  of 
the  declaration  to  meet  the  varying  phases  of  the  evidence,-*^  and 
to  prevent  possible  variance  between  the  declaration  and  proof.*' 
This  practice  is  not  commendable,  as  it  tends  to  cumber  the 
record  and  to  add  unnecessiiry  costs.  The  mere  resorting  to 
different  counts  to  cover  different  years  for  the  stat^'ment  of  a 
sinjjle  cause  of  action,  does  not  8«'t  up  different  causes  of  action.** 
In  statini;  what  is  really  the  «ime  cau.se  of  action  in  dift'erent 
counts,  each  count  must  set  forth,  by  apt  reference  or  otherwise, 
a  distinct  and  complete  cause  of  action.*^ 

433  Joinder  of  counts  of  different  causes  of  actions 

At  common  law  several  causes  of  action  of  the  same  nature, 
whether  accruing  at  the  same  or  different  times,  may  be  joined 

»« Winchester   v.    Rounds,   55    HI.  *•  Lake   Shore   ft   M.   S.    Ry.   Co. 

451.   4.'',4    (1870).  V.     Hesaions,     150     111.     546,     557 

sTSanford  v.  Oaddi*,  13  HI.  329,  (1894). 
340    (1H,^)1).  "Glover    v.    Radford,    120    Mich. 

"Mount   V.   Hunter,   58   HI.    246,  542.  .'544   (1899). 
248   (1871).  **  White    River    Log:    &    Booming 

»•  Thompson  v.  Turner,  22  111.  389,  Co.    v.    Nelson,    45    Mich.    578,    580 

390    (18r,9).  (1881). 

♦0  Lake  Erie  ft  W.  R.  Co.  v.  Wills,  "  Lake  Shore  ft  M.  S.  By.  Co.  v. 

140   III.   614,  619    (1892).  Heaaions,  svpra. 

♦«  Zimmerman    v.    Wead,    18    III 
304,  306   (1857). 


151  ANNOTATED    FORMS   OP   PLEADING    AND    PR^VCTICE 

in  a  single  count,  and  a  recovery  may  be  had  pro  tanlo.^'''  Dif- 
ferent, antagonistic  and  dissimilar  causes  of  action  cannot  be 
joined  in  the  same  coimt."*^  And  as  many  distinct  grounds  of 
recovery  as  are  deemed  necessary  may  be  set  forth  in  a  declara- 
tion, provided  enough  be  proved  to  make  out  a  complete  cause 
of  action.-*^  It  is  not  necessary  to  prove  all  of  the  counts  of  a 
declaration  or  to  prove  allegations  which  are  not  essential  to  the 
cause  of  action;  nor  is  a  cause  affected  by  disproving  unneces- 
sary allegations.'*'*  Under  statute,  one  good  count  sufficiently 
proved  sustains  a  judgment.'"       This  is  not  so  at  common  law.^^ 

434  Misjoinder  of  counts,  test 

The  general  and  formal  characteristic  of  a  count  in  a  particu- 
lar form  of  action,  and  not  the  substantial  elements  of  a  cause  of 
action,  control  the  question  of  misjoinder.'-  Several  counts  do 
not  state  the  same  cause  of  action  if  they  reiiuire  ditferent  evi- 
dence to  support  them,  or  if  a  judgment  on  one  can  be  pleaded 
in  bar  to  a  subsequent  suit  ui)on  the  other.^^ 

435  Election  of  counts,  practice 

It  is  error  for  a  court  to  reijuire  the  plaintiff  to  elect  under 
which  count  his  case  should  be  submitted  to  the  jury.  But  a 
court  may  submit  the  issues  to  the  jury  under  a  count  which  the 
plaintiff's  evidence  fairly  tends  to  sustain.^^ 

436  Election  of  counts,  motion  of 

Now  comes  the  plaintiff,  by  his  attorney,  and, 

pursuant  to  the  rule  entered  on  the  plaintiff  in  this  cause,  on 

*o  Krug  V.  Ward,  77  111.  G03,  G05  oo  Consolidated       Coal       Co.       v. 

(1875);    Godfey    v.    Buckmaster,    1  Schneider,  167  111.  539,  541  (1897) ; 

Scam.    447,    450    (1838)  ;    Brady   v.  Olson  v.  Kelly  Coal  Co.,  236  111.  502, 

Spurck,  27   111.   477,   482    (1861).  504,   505    (1908);    Sec.   78  Practice 

♦7  Southern    By.    Co.    v.    Bunnell,  act    (lU.). 

36  So.   380,  382    (Ala.   1903);   Illi-  si  Consolidated       Coal       Co.       v. 

nois  Central  R.   Co.  v.  Abrams,  84  Schneider,   supra. 

Miss.  456,  463    (1904);   Noetling  v.  "  Selbv    v.    Hutchinson,    4    Gilm. 

Wright,   72   111.   390.   392    (1874).  319,  327 '(1847). 

48  Weber  Wagon  Co.  v.  Kehl,  139  53  Wabash  R.  Co.  v.  Bhymer,  214 
ni.  644,  656.  657  (1892);  Postal  111.  579.  586  (1905);  Brady  v. 
Telegraph-Cable    Co.    v.    Likes,    225  Spurck.  27  111.  482. 

111.  249,  258    (1907);   Scott  v.  Par-  c*  Lukcn  v.   Lake  Shore  &  M.   S. 

Hn    &    Orendorff    Co.,    245    111.    460,      Ey.  Co.,  248  111.  377,  384    (1911). 
462    (1910). 

49  Postal    Telegraph-Cable    Co.    v. 
Likes,  225  111.  262. 


DECLARATION  155 

the day  of ,  19 .  . ,  elects  to  re- 
tain the  following  counts  of  the  declaration  filed  on  the 
day  of ,  ly .  . ,  to  wit : 

The   count,  being  pages   ...    to   . . . ,  inclusive, 

of  said  declaration. 

The count,  being  on  pages  ...  to  .  .  . ,  inclusive. 

COMMENCEMENT  AND  CONCLUSION 
ASSUMPSIT 

437  District  of  Columbia 

The  plaintiff  sues  the  defendant  for  money  payable  by  the 
defendant  to  the  plaintiff. 

Conclusion 

And  \hv  f)laintifT  claims  the  sum  of dollars  with 

interest  and  costs. 

Attorney  for  plaintiff. 
or 

Wherefore,  the  plaintiff  claims  dollars  and  in- 
terest at  tlie  rate  of p«'r  cent  from    

besides  costs. 


Attorney  for  plaintiff. 
438  Florida 

,  by  ,  his  attorney,  sues 

defendant. 

or 

,  copartners  doing  business  as 

,  by  their  attornfvs, . .  .,  sues 

,  a  corporation   organized  and   existing  under 

the  laws  of  the  state  of  Florida. 

Subsequent  counts 
And  plaintiff  further  sues  the  defendants. 

Conclusion 

To  the  phiintiff's  damage  in  the  sum  of dollars; 

and  plaintiff  ehiims dollars. 

or 
Wherefore,  she  claims  damages  in  the  sum  of   

dollars. 

or 

Wherefore,  plaintiff  sues  and  claims dollars. 


Attorney  for  plaintiff. 


156  ANNOTATED  FORMS  OP  PLEADING   AND   PRACTICE 

439  Illinois 

,    plaintiff        in    this    suit,    by     , 

h      attorneys,  complain        of ,  defendant      in 

this  suit,  summoned,  etc.,  of  a  plea  of  trespass  on  the  case  on 

promises. 

Conclusion 

Yet,  the  defendant,  although  often  requested  so  to  do,  ha 
aot  paid  the  said  several  sums  of  money  above  mentioned,  or  any 
or  either  of  them,  or  any  part  thereof  to  the  said  plaintiif    ,  but 
CO  pay  the  same,  or  any  part  thereof,  to  the  said  plaintiff 
ha     hitherto  altogether  refused,  and  still  do     refuse ;  to  the 

damage  of  the  said  plaintiff     of  dollars,  and 

therefore,  the  plaintiff     bring     h     suit,  etc. 

or 

Nevertheless,  the  said  defendant,  not  regarding  his  said  prom- 
.<5es  and  undertaking's,  but  contriving,  etc.,  hath  not  as  yet  paid 
ihe  said  several  sums  of  money,  or  any  or  either  of  them,  or  any 
part  thereof,  to  the  said  plaintiff,  althouj,'h  the  said  defendant, 
afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  to  wit,  at 

said   county,  was  requested  by  the  said  plaintiff 

80  to  do,  but  said  defendant  so  to  pay  the  same  hath  hitherto 
wholly  neglected  and  refused,  and  still  doth  neglect  and  refuse; 

to  the  damage  of  the  plaintiff  of  dollars,  and 

therefore,  the  said  plaintiff      bring      h      suit,  etc. 


Plaintiff's  attorney. 

440  Maryland 

,  by ,  his  attorney,  sues 

for  money  payable  by  the  defendant  to  the  plaintiff. 

Conclusion 
And  the  plaintiff  claims  $ 

Attorney  for  plaintiff. 

441  Michigan 

,  a  corporation,  organized  and  existing  under 

the  state  of ,  plaintiff  herein,  by ,  its 

attorney,   complains   of    ,   defendant  herein,    of 

a  plea  of  trespass  upon  the  case  upon  promises,  filing  this 
declaration  as  commencement  of  suit. 

Conclusion 

Yet  the  said  defendant  has  disregarded  its  said  promises  and 
has  not,  although  often  requested  so  to  do,  paid  any  of  the  said 


DECLARATION  157 

8U1US  of  money,  or  any  part  thereof;  to  the  plaintiff's  damage 
of dollars,  and  therefore  he  brings  suit,  etc. 


Attorney  for  plaintiff. 

442  Mississippi 

Comes  plaintiff, ,  by  his  attorney, , 

and  complains  of  defendant,  a  resident  of district 

of county  in  the  state  aforesaid,  and  for  cause  of 

action  states  the  following: 

Conclusion 

Wherefore,  plaintiff  sues  and  prays  judgment  for  said  sum 
and  all  costs. 

or 

Wherefore,  plaintiff  brings  this  suit  and  asks  judgment  for 

tlie  sum  of dollars  with  legal  interest  thereon  from 

,  19 .  . ,  and  all  costs  in  this  behalf  expended. 

or 

The  plaintiff,  therefore,  demands  judgment,  for  the  use  afore- 
said, atrainst  the  defendant  for  the  sum  of dollars 

with  interest  thereon  from  the day  of , 

11).. 


Plaintiff's  attorney, 
443  Virginia 

complains  of  of  a  plea  of  tres- 
pass on  the  case  in  aivsumpsit. 

Conclusion 

Wherefore,  the  said  plaintiff  says  that  by  reason  of  the  prem- 
ises he  is  injured  and  hath  sustained  damages  to  the  amount  of 

dollars.    And,  therefore,  he  institutes  this  action 

of  trespass  on  the  case  in  assumpsit. 

or 

And  the  plaintiff  avers  that  by  reason  of  the  premises  an  ac- 
tion hath  acenied  to  it  to  demand  of  the  defendant  and  have  of 
it  the  said  damages  in  the  (several)  counts  of  this  declaration 
mentioned,  and  which,  though  often  demanded,  the  defendant 
hath  hitherto  wholly  refused  to  pay;  and,  therefore,  it  brings 
this  suit. 

p-  q- 


158  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

444  West  Virginia 

of    ,  a  corporation,  comphiins  of 

of  a  plea  of  trespass  on  the  case  on  promises. 

Conclusion 

Nevertheless,  the  said  defendants  not  regarding  their  said 
several  promises  and  undertakings  iiave  not  kept,  performed,  or 
fultilled  the  same,  altliough  often  requested  so  to  do,  hut  have 
broken  the  same,  as  aforesaid,  to  the  damage  of  said  plaintitT's 
dollars ;  and  therefore,  they  sue. 

or 

Yet,  the  said  defendant,  not  regarding  his  several  promises 
and  undertakings  in  the  several  counts  hereinbefore  mentioned, 
has  not  paid  to  plaintitf,  or  anyone  for  it,  tlie  several  sums  of 
money  above  mentioned,  or  either  of  them,  or  any  part  thereof, 
although  often  requested  so  to  do;  but  the  same,  or  either  of 
them,  or  any  part  thereof  to  i)ay,  has  liitlierto  wholly  neglected 
and  refused,  and  still  does  neglect  and  refuse,  to  the  damage  of 

the   said   phiintitf  of    dollars;   and   therefore,   it 

brings  its  suit. 

P-  q- 

CASE 

445  District  of  Columbia 

The  plaint  itf  sues  the  defendant   

and  for  cause  of  action  states  as  follows: 

Conclusion 

"Wherefore,  he  brings  this  suit  and  claims  dol- 
lars besides  costs. 

or 

To  the  damage  of  the  plaintiff  of dollars,  where- 
fore, the  plaintiff  claims  of  the  defendant  the  sum  of 

dollars  and  cost  of  this  suit, 

or 

And  the  said  plaintiff  claims  damages  of  said  defendant  in  the 

sum  of   dollars  besides  costs ;  and  wherefore,  he 

brings  his  suit  against  the  said  defendant. 


Attorney  for  plaintiff. 


DECLARATION  159 

446  Illinois 

,  plaintiff,  by ,  h      attorney 

complains  of  defendant,  of  a  plea  of  trespass  on 

the  case. 

Conclusion 

"Wherefore,  the  plaintiff  says  that     he  injured  and 

ha      sustained  damage  to  the  amount  of dollars, 

and  therefore     h     bring     h     suit,  etc. 

or 

To  the  damage  of  the  plaintiff  in  the  sum  of  

dollars  ($ ),  and  therefore,  he  brings  his  suit. 

or 

By  means  of  which   said  grievances  the  plaintiff  has  been 

damaged  in  the  sum  of dollars,  and  he  therefore, 

brings  his  suit,  etc. 

Attorney     for  plaintiff     , 

447  Maryland 

hy  her  attorney sues 

copartners  trading  as    and  the   mayor  and  city 

council  of 

Conclusion 

And  the  plaintiff  claims dollars  damages. 

Plaintiff's  attorney. 

448  Michigan 

plaintiff  herein,  by .  .  .,  his  attorneys, 

comphiins  of ,  defendant  herein  in  a  plea  of  tres- 
pass on  the  ca.se,  the  said having  been  duly  sum- 
moned herein  by  writ  of  summons  to  answer  the  said  plaintiff. 

Conclusion 

By  reason  of  which  and  whereby  the  said  plaintiff  has  suffered 

damage  to  a  larpre  amomit,  to  wit,  in  the  sum  of 

dollars,  and  therefore,  he  brings  suit. 

Plaintiff's  attorney. 
Business  address. 


160  ANNOTATED    FORMS   OF    PLLADINU    AND    PRACTICE 

449  Mississippi 

brings  this  suit  against   and  by 

way  of  showing  a  cause  of  action  states  the  following: 

Conclimon 

All  to  his  damage  in  the  sum  of dollars ;  where- 
fore, he  brings  suit  and  demand^  judgment  for  said  sura,  to- 
gether with  all  costs. 


Plaintiff's  attorney. 

450  Virginia 

complains  of incorporated  under 

the  laws  of  the  state  of  \'irginia,  of  a  plea  of  trespass  on  the  case. 

Conclusion 

To  the  damage  of  the  said  plaintiff  in  the  sura  of 

dollars,  ami  tlu'reforc,  he  brings  this  .suit. 

p-  q- 

451  West  Virginia 

,  plaintiff,  coraplains  of ,  who  has 

been  sumraoned,  etc.,  of  a  plea  of  trespass  on  the  case. 

Conclusion 

Wherefore,  the  said  plaintiff  says  that  he  is  injured  and  has 

sustained  damages  to  the  amount  of  dollars,  and 

therefore,  he  brings  his  suit. 

or 

Wherefore,  and  by  means  of  the  premises  and  of  the  wrongs, 
grievances  and  injuries  hereinbefore  mentioned  and  set  forth, 
the  said  plaintiff  hath  sustained  damages  to  the  amount  of 
dollars ;  and  therefore  he  sues. 


Plaintiff's  attorneys. 

COVENANT 


452  General  commencement 

,  plaintiff,  complains  of ,  defend- 
ant, of  a  plea  of  a  breach  of  covenant. 


or 


,  a  corporation,  etc.,  executor,  etc.,  of , 

,  deceased,  complains  of ,  of 

a  plea  of  covenant  broken. 


DECLARATION  161 

Conclusion 

And  so  the  said  plaintiff  saith  that  the  said  defendant,  al- 
though often  requested  and  demanded  so  to  do,  by  said  plaintiff, 

executor  as  aforesaid,  since  the  death  of  the  said 

and  by  the  said    during  his  life  time,  hath  not 

kt'pt  the  said  covenant  so  by  her  made  as  aforesaid,  but  hath 
broken  the  same,  and  to  keep  the  same  with  the  said  plaintiff, 

executor  as  aforesaid,  since  the  death  of  the  said , 

and  with  the  said during  his  life  time,  hath  hitherto 

wliolly  neglected  and  refused,  .'ind  still  doth  neglect  and  refuse, 
to  the  damage  of  the  said  phiintiff,  executor  as  aforesaid,  of 

dollars.     And  therefore,  the  said  plaintiff  brings 

his  action. 

p-  q- 

DEBT 

453  District  of  Columbia 

The  commencement  and  the  conclusion  in  debt  is  the  same  as 
in  assumpsit. 

454  Illinois 

plaintiffs,  who  sue  for  the  use  of , 

cuinplain  of ,  defendants,  summoned  to  answer  the 

said  plaintiffs  in  a  plra  wherefore  they  owe  to  and  unjustly  de- 
tain from  the  plaintiffs  the  sum dollars. 

Conclusion 

And  the  said  plaintiffs  aver,  that  by  means  of  the  breaches 
aforesaid,   an   action   hath   accrued  unto   the  said  plaintiffs  to 

have  and  demand  of  the  defendants  the  said  sum  of 

dollars  above  demanded ;  yet,  the  said  defendants  have  not  paid, 
or  caused  to  be  paid,  unto  the  plaintiffs,  or  either  of  them,  the 

said  sum  of dollars,  or  any  part  of  the  said  sum 

above  demanded,  but  on  the  contrary  have  wholly  neglected  and 
refused  so  to  do,  and  still  do  neglect  and  refuse,  to  the  damage 
of  the  plaintiffs  in  the  sum  of dollars;  and  there- 
fore, they  sue  for  the  use  of  the  said ,  etc. 


455  Maryland 


county,  8C 

by    ,  his  attorney,  sues 


162  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

Conclusion 

And  the  plaintiff  claims  therefore  the  sum  of  .... 
dollars. 


Attorney  for  plaintiff. 

456  Mississippi 

,  by  his  attorney,   ,  complains  of 

,  of  a  plea  that  he  render  to  plaintiff  the  sum  of 

dollars  which  he  owes  and  unjustly  detains  from 

him.     (Conclude  as  in  assumpsit) 

457  Virginia 

,  a  corporation  created  and  doing  business  un- 
der the  laws  of  the  Initt-d  States,  complains  of   , 

of  a  plea  that  they  render  unto  it   the  sum  of    

dollars  which  to  it  they  owe  and  from  it  unjustly  detain. 

Conclusion 

Yet,  the  said  defendants,  altliouj^h  often  requested,  have  not, 
nor  hath  either  of  them  nor  anyone  of  them,  as  yet  paid  to  the 
said  plaintitf  the  said  sum  of  dollars  above  de- 
manded, nor  any  part  thereof,  or  of  the  interest  thereon  as  afore- 
said, but  the  same  to  pay  have  hitherto  wholly  uegleetcd  and  re- 
fused, and  still  do  neglect  and  refuse,  to  the  damage  of  the  said 
plaintiff  of dollars. 

And  therefore  it  brings  its  suit. 


By  counsel. 
Counsel. 

458  West  Virginia 

complains  of  ,  of  a  plea  that  he 

render  unto  the  said  plaintiff  the  sum  of  dollars 

($ ),  which  to  him  the  said  defendant  owes,  and  from 

him  unjustly  detains. 

or 

The  town  of   ,  a  municipal  corporation,  under 

the  laws  of  the  state  of  West  Virginia,  which  sues  for  the  use 

and  benefit  of  ,  complains  of   and 

••_••; ,  a  corporation  under  the  laws  of  the  state  of  West 

Virginia,  who  have  been  duly  summoned  to  answer  of  a  plea  that 

they  render  unto  the  said the  sum  of 

dollars,  which  to  her  they  owe  and  from  her  unjustly  detain. 


DECLARATION  163 

Conclusion 

Yet,  the  said  defendants,  although  often  requested,  have  not, 
nor  has  either  of  them,  as  yet  paid  to  the  said  plaintiff  (or  the 

said    ^^),  the  said  sum  of    dollars, 

with  interest  or  any  part  thereof,  but  the  same  to  pay  have 
hitherto  wholly  refused  and  still  do  refuse,  to  the  damage  of  the 
said  plaintiff  of  dollars  and  interest ;  and  there- 
fore it  brings  this  suit. 

P-  q- 

DETINUE 

459  General  commencement 

,   poinplain       of    ,  of  a  plea   that 

h  render  to  the  said  plaintiff of  the  said  plain- 
tiff of  great  value,  to  wit,  of  the  value  of dollars, 

which    h     unjustly  detains  from 

or 

complain  of  said   of  a  plea  that 

they   the  said    ,   and   each  of   them,   render  unto 

the  said  plaintiffs  certain  goods  and  chattels  and  personal  prop- 
erty of  the  said  plaintiffs,  of  great  value,  to  wit,  of  the  value  of 

.  . .' dollars,  which  they,  the  said  defendants,  and  each 

of  them,  unjustly  detain  from  said  plaintiffs. 

Conclusion 

Yet,  the  said  defendant     ,  although      he      w      afterwards, 

to  wit,  on  the   day  of   ,  19.  .,  requested 

bv  the  said  plaintiff      so  to  do,       ha      not  as  yet  re-delivered 

the   said    to   the    plaintiff     ,    but    ha       hitherto 

wholly  neglected  and  refused,  and  still  do  neglect  and  refuse 
so  to  do,  and  still  unjustly  detain  the  same  from  the  plaintiff 

or 

Yet,  the  said  defendants,  and  each  of  them,  although  they 
were  often  requested  by  plaintitTs  to  do  so,  have  not  yet  deliv- 
ered the  said ,  the  personal  property  aforesaid,  or 

anv  part  thereof,  to  said  plaintiffs,  or  either  of  them,  but  have 
hitherto  wholly  neglected  and  refused,  and  still  doth  neglect 
and  refuse  to  so  deliver  said  property  or  any  part  thereof,  un- 
justly detaining  the  same  from  the  plaintiffs,  and  each  of  them, 

to  the  damage  of  plaintiffs  in  the  sum  of dollars; 

and  therefore,  plaintiffs  bring  this  suit. 

»»  Include  where  there  is  a  bene- 
ficial plaintiff. 


164  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

or 

Nevertheless,  the  said  defendant      well  knowing  the  said  last 

mentioned to  be  the  property  ol'  the  said  plaintiff    , 

and  of  right  to  belong  and  appertain  to  ,  ha      not  as 

yet  delivered  the  said  last  mentioned to  the  said 

plaintiff     ,  although w      afterwards,  to  wit,  on 

the day  of ,  19 .  . ,  requested  by  the  said 

plaintiff       so   to  do,   but   ha        hitherto  wholly    refused;    and 
still  do       refuse  so  to  do,  and  ha       detained,  and  still  do 
detain,  the  same  from  the  said  plaintiff     ,  to  the  damage  of  the 
said  plaintiff  in  the  sum  of   dollars.     And  there- 
fore,     h      bring suit. 

P-  q- 

EJECTMENT 

460  Illinois 

,   plaintiff     ,   in    the   above  entitled  cause  by 

,  h  attorney  ,  complain  of  ,  de- 
fendant ,  who  lia  been  summoned  according  to  the  statute 
in  such  case  made  and  provided,  in  a  plea  of  ejectment. 

Conclusion 

To  the  damage  of  the  said  plaintiff    of  (State  a  nominal  sum) 
dollars ;  ami  therefore      h      bring  this  suit. 

461  Michigan 

and    ,   trustees,   plaintiffs  herein, 

by ,  their  attorney,  complain  of ,  de- 
fendant, herein,  of  a  plea  of  ejectment,  filing  this  declaration, 
entering  rule  to  plead,  etc.,  as  commencement  of  suit. 

Conclusion 

To  the  damage  of  said  plaintiff  of dollars ;  and 

therefore,  he  brings  suit,  etc. 


Plaintiff      attorney. 
Business  address. 


462  Virginia 


....    and    ,   plaintiffs,    complain   of 

,  defendant,  of  a  plea  of  trespass. 


DECl^VRATION  165 

Conclusion 

To  the  damage  of  the  said  plaintiffs    dollars, 

and  therefore  they  bring  their  suit. 

p-  q- 

REPLEVIN 

463  Illinois 

,  a  corporation  duly  organized  and  doing  busi- 
ness under  the  laws  of  the  state  of .• ; '  ^^^ ' 

its  attorneys,  complains  of ,  sheriff  of 

county,  Illinois,  defendant,  of  a  plea  wherefore  he  took  the 
goods  and  chattels  of  plaintiff  and  unjustly  detained  the  same 
until  the day  of ,  19 .  . 

Conclusion 

"Wherefore,  plaintiff  says  it  is  injured  and  has  sustained  dam- 
age to  the  amount  of   dollars,  and  therefore,  it 

brings  its  suit,  etc. 

464  Michigan 

Inasmuch  as defendant,  did  unlawfully  detain 

certain  goods  and  chattels,  the  property  of plain- 
tiff iiercin  described  in  the  writ  of  replevin  in  this  cause  and 
hereinafter  set  forth,  said  defendant  was  summoned  to  answer 

said  plaintiff,  and  thereupon  the  said  plaintiff,  by , 

his  attorney,  complains  against  the  said  defendant  of  a  plea  of 
replevin. 

Conclusion 

To  the  damage  of  the  said  plaintiff  of dollars,  and 

therefore  he  brings  suit. 

465  Mississippi 

Tile  plaintitY by   his  attorney,   complains  of 

,  defendant,  of  a  plea  wherefore  he  took  the  goods 

and  chattels  of  plaintiff  and  unjustly  detains  the  same  in  this, 
to  wit : 

Conchision 

"Wherefore,  for  the  unlawful  and  unjust  detention  by  the  de- 
fendant of  said  (Describe  property),  plaintiff  was  deprived  of 

the  use  thereof  and  damaged  to  the  extent  of dollars, 

and  therefore,  he  brings  this  suit  and  demands  judgment  with 
costs. 


Plaintiff      attorney. 


166  ANNOTATED   FORMS  OP    PLEADING   AND   PRACTICE 

TRESPASS 

466  District  of  Columbia 

The  commencement  and  the  conclusion  in  an  action  of  tres- 
pass are  the  same  as  iu  au  action  on  the  case. 

467  Illinois 

,  plaintiff      in  this  suit,  by ,      h 

attorney     ,   coinplaiu       of    defendant        in   this 

suit,  summoned,  etc.,  of  a  plea  of  trespass. 

Coiiclusiun 

TVlierefore,    the    plaintiff       say        that        he        injured    and 

ha      sustained  damage  to  the  amount  of dollars ; 

and  therefore,       he       bring         h      suit,  etc. 


Plaintiffs'  attorney. 

468  Mississippi 

Comes   ,  a  citizen  of  the    county, 

Mississippi,  by  his  attorney,  ,  in  an  action  of  tres- 
pass, and  sues ,  a  citizen  of  county, 

IMississippi,  and  for  his  cause  of  action  plaintiff  alleges  the  fol- 
lowing statement  of  facts: 

Conclusion 

"Wliereforo,  for  said  wrong  and  injury  plaintiff  sues  and  de- 
mands judgment  against  the  said  defendant  for  the  total  sum 
of dollars,  and  all  costs  of  suit. 

TROVER 

469  Generally 

In  trover,  which  is  an  action  of  trespass  on  the  case,  the  com- 
mencement and  the  conclusion  of  a  declaration  are  the  same 
as  in  case. 

PARTIES 

470  Administrator  (District  of  Columbia) 

The  plaintiff,    ,  administratrix  of  the  estate  of 

,  deceased,  duly  appointed  such  administratrix  by 

the  supreme  court  of  the  District  of  Columbia,  holding  a  special 
terra  for  orphan's  court  business  who  now  brings  her  letters 
of  administration  in  that  behalf,  and  who  sues  the  defendant,  a 
corporation  doing  business  in  the  District  of  Columbia. 


DECLARATION  167 

(Illinois) 

For  that  whereas,  said  intestate, on,  to  wit,  the 

day  of ,  19 .  • ,  died  at  the  city  of , 

iu  said  county,  and  was  at  the  time  an  inhabitant  of  said  county, 
and  thereafter  such  proceedings  were  taken  and  had  in  the  pro- 
bate court  for  said  county  that  upon,  to  wit,  the day  of 

19. .,  plaintiif  was  by  an  order  of  said  probate  court, 
duly  and' lawfully  appointed  administratrix  of  the  estate  of  said 
intestate,  and  then  and  there  duly  qualified  as  such  officer  and 
entered  on  the  performance  of  the  duties  of  said  trust;  and 
plaintiff  brings  into  court  here  letters  of  administration  of 
said  proljate  court  which  give  sufficient  evidence  to  the  court 
here  of  the  grant  of  administration  to  plaintiff,  as  aforesaid,  the 
day  whereof  is  the  day  ami  year  in  that  behalf  mentioned. 

471  Corporations  (Illinois) 

,  ;i  eori)oration  organized  and  established  under 

the  act  of  Congress  of  the  I'nited  States  of  America,  known  as 
the  National  Hanking  act,  plaintiff  in  this  suit,  by  its  attorney, 
comi)lains  of  the ,  a  corporation  organized  and  es- 
tablish.-d  under  the  Siiid  act  of  Coiif^'ress,  defendant  in  this  suit, 
and  summoned  to  answer  the  plaintitf  of  a  plea  of 

(Virginia) 

.,  a  corporation  duly  created,  organized  and  ex- 
isting under  the  laws  of  the  state  of ,  the  plaintiff 

in    this   suit,    complains   of    the    ,    a   corporation, 

created,  organized  and  existing  under  the  laws  of  the  state  of 
,  of  a  plea  of 

472  Executor  (District  of  Columbia) 

The   plaintiffs,    and    ,   copartners 

trading   as    ,   sue    defendants,    and 

,  as  executors  of  the  estate  of  ,  de- 
ceased, for  that  heretofore,  to  wit,  on departed  this 

life  and  heretofore,  to  wit,  on letters  testamentary 

were  issued  by  the  supreme  court  of  the  District  of  Columbia, 

holding  a  probate  court,  to  the  said  defendants,   

and  ,  as  executors  of  the  estate  of   

as  sho\\Ti  bv  certified  copies  of  said  letters  testamentary  hereto 
annexed  and  marked  exhibit  "A,"  and  that  the  said  defend- 
ants had  qualified  as  such. 

(Florida) 
as  executor  of  the  last  will  and  testament  of 
. . . '. '. . . . . .  .  . ,  deceased,  plaintiff,  by ,  his  attorney, 


168  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

alleges  that  the  said departed  this  life  on 

day  of ,  19-  •,  that  he  is  the  duly  appointed  and 

qualified  executor  of  said last  will  and  testament 

and  the  execution  thereof,  and  as  such  executor,  complains  of 
,  who  has  been  summoned  to  answer  the  plaiutift*: 

473  Foreign  corporations  (District  of  Colmnbia) 

The  i)laintitf, ,  su('s  the  defendant, , 

a  corporation,  duly  incorporated  under  the  laws  of , 

having  an  office  and  doing  business  within  the  District  of  Co- 
lumbia, and  empowered  by  law  to  do  and  transact  the  business 
of ,  within  the  District  of  Columbia. 

(Florida) 

,  by his  attorney,  sues  the , 

a  corporation  duly  organized  and  existing  under  and  by  virtue 
of  the  state  of ,  doing  business  and  having  a  busi- 
ness office  and  agent  in  county,  Florida,  the  de- 
fendant, which  has  been  summoned  to  answer  him  in  an  action 
on  the  case,  damages dollars. 

(Illinois) 

,  plaintiff      in  this  suit,  by ,      h 

attorney,  complain  of  the  ,  a  corporation  exist- 
ing under  and  by  virtue  of  the  laws  of  the  state  of , 

and  doing  business  in  the  state  of  ,  defendant     , 

of  a  plea  of 

or 

The   ,  a  body  politic  and  corporate  created  by 

the  state  of ,  was  summoned  to  answer  the , 

a  body  politic  and  corporate  created  by  the  King  of  Great  Britain, 
by  and  with  the  advice  and  consent  of  the  senate  and  house  of 

oommons  of  the  Dominion  of  Canada,  of  a  plea  of   ; 

and  thereupon  the  said  plaintiff  by • ,  its  attorneys, 

complains. 

(Maryland) 

,  by ,  her  attorneys,  sues , 

of   ,  a  corporation  legally  incorporated  under  the 

laws  of  the  state  of   ,  and  duly  authorized  to  do 

business  and  doing  business  in  the  state  of  ]\Iaryland. 

(Michigan) 

,  plaintiff,  herein  by ,  his  attorney. 

complains  of (a  foreign  corporation),  legally  au- 


DECLARATION  169 

thorized  to  do  a  fire  insurance  business  in  the  state  of  Michigan, 
and  to  issue  policies  of  insurance  against  loss  by  fire  in  said 
state,  and  who  is  named  defendant  herein,  of  a  plea  of 
,  filing  this  declaration  as  commencement  of  suit. 

(Mississippi) 

Comes   ,  a  citizen  of   county,  by 

his  attorney,  and  complains  of ,  a  corporation  or- 
ganized and  authorized  under  the  laws  of  the  state  of , 

having    its    principal    oftice    and    place    of    business    in    said 

,  operating  and  doing  an  insurance  business  with 

officers  and  agents  in  the  county  of ,  in  the  state 

of  Mississippi,  said  agents  being and , 

insurance  commissioner  of  said  state,  who  by  virtue  of  law,  be- 
ing also  its  agent  upon  whom  process  can  be  served  as  defend- 
ant in  an  action  of 

474  Husband  and  wife 

,  and ,  his  wife,  complain  of  the  city 

of    a  corj)oration  organized,  existing  and  doing 

business  under  the  laws  of  the  state  of  West  Virginia,  which 
has  been  duly  summoned,  etc.,  of  a  plea  of 

475  Municipality  (Illinois) 

,  by ,  his  guardian,  plaintiff  in  this 

suit,  by ,  his  attorney     ,  complains  of  the  city  of 

,  a  municipal  corporation  organized  and  existing 

under  and  by  virtue  of  the  laws  of  the  state  of  Illinois,  defendant, 
of  a  plea  of 

(Mississippi) 

The  plaintiflF ,  a  citizen  of county, 

Mississippi,  by  attorney,  complains  that  the  defendant,  mayor 

and  boards  of  aldermen  and  councilmen  of  the  city  of , 

in  an  action  of ;  and  for  cause  of  action  shows  the 

following  facts,  to  wit : 

476  Next  friend  (Florida) 

The  plaintiff ,  an  infant  of  the  age  of    

years,  by    ,  her  next  friend,  sues  the  defendant, 

a  corporation  created  and  existing  under  and  by 

virtue  of  the  laws  of  the  state  of ,  which  has  been 

summoned,  etc.,  and  says :    


170  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

(Illinois) 


plaintiff,  by ,  his  father  and  next 

fnend,  who  is  admitted  by  the  court  here  to  prosecute  for  the 
sai^l ,  who  is  a  minor,  by  ,  his  attor- 
ney, complains  of  the   company,  defendant,  of  a 

plea  of 

(Michigfan) 

»  by ,  who  is  permitted  by  the  court 

here  to  prosecute  for  the  said ,  who  is  an  infant 

under  the  age  of  twenty-one  years,  as  the  next  friend  of  said 
»  plaintiif  in  this  suit,  by  ,  his  attor- 
neys, complains  of   ,  who  is  a  resident  of  said 

county,  defendant  herein,  of  a  plea  of ,  filing  this 

declaration,  with  a  rule  to  plead,  etc.,  in  accordance  with  the 
statute,  as  commencement  of  suit. 

(Virginia) 

>  by ,  who  is  admitted  by  the  court 

here  to  prosecute  for  the  said  ,  who  is  an  infant 

under  twenty-one  years,  as  next  friend  of  ,  com- 
plains of ,  a  corporation,  etc.,  of  a  plea  of 

477  Nominal  plaintiff 

,  who  sues  for  the  use  of ,  plaintiff, 

complains  of ,  who  was  summoned,  etc.,  as  defend- 
ant, in  a  plea  of 

478  Partners 

• '   an^  ,  copartners  doing 

business  under  the  firm  name  and  style  of ,  plain- 
tiffs in  this  suit,  by    ,  their  attorneys,   complain 

of   ,  doing  business  as   *,  defendants 

herein,  summoned,  etc.,  of  a  plea  of 

Surviving  partner 

»  sole  sun'iving  partner  of  the  firm  of   

>,  plaintiff  in  this  suit,   by    ,  his  attorney, 

complains  of ,  a  corporation  existing  under  and 

by  virtue  of  the  laws  of  the  state  of ,  defendant, 

of  a  plea  of  


DECLARATION  171 

479  People  (Illinois) 

The  people  of  the  state  of ,  plaintiff,  by  their 

attorney     ,  upon  order  of  the  board  of  county  commissioners  of 

county,  complain  of    ,  of  a  plea 

of 


(Maryland) 

The  state  of  ^farv'land  to  the  use  of ,  by 

and ,  its  attorneys,  says 


480  Railroad  company 

Comes  the  plaintiff, ,  a  corporation  incorporated 

under  the  laws  of  the  state  of  and  domiciled  in 

in  the  state  of ,  and  in  this  its  cause 

of  action  against  ,  domiciled  at   ,  in  the 

city  of operating;  a  line  of  railroad  in  and  through 

the  state  of  Mississippi,  having  a  re^lar  stopping  place  in 
and  a  regular  agent  upon  whom  service  of  proc- 
ess can  be  had.  and  shows  unto  the  court  in  its  cause  of  action, 
the  following  statement  of  facts,  tuwit : 

or 

Comes  the  plaintiff     ,  resident  citizen  of  the  .... 

,  county,  Mississippi,  by  his  attorney  and  complains  of 

a  corporation   chartered   under   the   laws  of   the 

state  of  Mississippi  and  owning  and  operating  a  railroad  in  the 

district  of county,  Mississippi,  where 

it  has  its  tracks,  offices,  officers  and  agents,  and  as  cause  of 
action  states  as  follows: 

481  Receivers 

,  plaintiff  in  this  suit,  by ,  her  attor- 
ney,   complains  of ,  a  corporation  and 

receiver  of  said  defendant  sum- 
moned herein  of  a  plea  of 


or 

,  plaintiff  in  this  suit,  by ,  her  attor- 
neys, complains  of receivers  of  the ,  a 

corporation,  and  of  the  property  and  effects  thereof,  under  and 

by  virtue  of  an  order  of  the court  of  the  United 

States  in  and  for  the    district  of    , 

and  di\nsion  thereof,  of  a  plea  of  


172  ANNOTATED  FORMS  OF   PLEADING   AND   PKACTICE 

EXHIBITS 

482  Nature  and  effect 

An  exhibit  or  an  instrument  sued  upon  whicli  is  appended 
to  the  declaration  is  no  part  thereof;  •"•  and  it  will  not  be  noticed 
upon  deniurrer.^'^''  But,  an  instrument  may  be  made  a  part  of 
the  declaration  by  setting  out  the  instrument  in  haec  verba  as 
an  exhibit  and  referring:  to  it  in  the  deelaration.^s  In  Missis- 
sippi, exhibits  attached  to  a  declaration  and  made  a  part  thereof 
by  averment  are  as  much  part  of  the  declaration  as  if  they  were 
set  out  in  haec  verba  in  the  declaration.^"  A  notice  of  a  copy 
of  an  instrument  sued  upon  limits  the  proof  to  be  heard  upon 
the  trial.«o 

483  Necessity 

It  is  not  necessary,  in  Illinois,  to  file  a  copy  of  an  instrument 
sued  upon  where  the  declaration  sets  forth  the  instrument  in 
haec  verba.^^ 


484  Amendment 

It  is  descretionary  with  the  trial  court  to  permit  an  amend- 
ment of  a  copy  of  the  instrument  sued  upon.«2 

AFFIDAVIT  OF  CLAIM 

485  Nature  and  effect,  presumption 

An  affidavit  of  claim  is  a  pleading  which  is  authorized  by 
statute,  although  it  is  no  part  of  the  declaration  itself.'' ^  j^ 
the  absence  of  a  bill  of  exceptions  a  reviewing  court  will  pre- 
sume that  a  proper  affidavit  of  plaintiff's  claim  was  filed  to 
authorize  the  judgment.*' •* 

56  Clemson  v.  State  Bank,  1  Scam.  oo  Humphrey    v.    Phillips     57    111 

45,    46    (1832);    Bogardus   v.    Trial,  132,  136   (1870). 

1    Scam.    63,    64    (1832);    Eiley   v.  ei  Phenix  Ins.   Co.   v.   Stocks.   149 

Yost,   58   W.   Va.   213,   214    (1905).  HI.    319,   324    (1893);    Benjamin   v. 

^o"/   o^^^  ^-   ^os^ell,    15   111.   56,  Delahav,  2  Scam.  574.  575   (1840); 

58    (1853).  Sec.  32,  Practice  act  1907. 

58  Goodyear    Shoe    Machinery    Co.  62  Stratton   v.    Henderson,   26   111. 
V.  Selz,  Schwab  &  Co.,  157  111.  186,  68    (1861). 

193   (1895).  63Healy  v.  Charnley,  79  111    592, 

59  Keystone  Lumber  Yard  v.  Ya-       594    (1875);    Sec.   55,   Practice   act 
zoo   &    M.    V.    E.    Co.,   47    So.    803,       1907. 

804  (Miss.  1908);  Blackwell  v.  Reid  64  Garrity  v.  Lozano,  83  111.  597, 

&   Co.,    41    Miss.    102,    103    (1866),      598   (1876). 

overruled. 


DECLARATION  173 

486  Optional 

It  is  optional  with  the  plaintiff  to  file  an  affidavit  of  claim.^* 

487  Persons  making 

An  affidavit  of  claim  may  be  made  by  the  plaintiff,  his  attor- 
ney, his  agrent,  or  any  other  person  who  knows  of,  and  can  swear 
to,  the  facts/'**  In  suits  by  several  plaintiffs  the  affidavit  may 
be  sworn  to  by  one  of  them.°^ 

488  Requisites 

The  giving  of  the  term  of  court  is  not  essential  to  an  affidavit 
of  claim,  if  the  affidavit  is  entitled  in  the  case  and  it  is  capable 
of  being  identified  as  bclonfjing  to  the  particular  case  in  which 
it  is  filed/'*  The  affidavit  should  state  the  exact  amount  due, 
including  interest  at  the  time  of  the  making  of  the  affidavit; 
or  it  should  fully  state  the  facts  from  which  the  correct  amount 
due  may  be  determined  by  calculation  of  interest."^  It  should 
state  "that  there  is  now  due  from  the  defendant  to  the  plain- 
tiff, after  allowing  to  the  defendant  (not  him  or  them)  all  just 
credits,  ""^o 

489  Filing 

An  affidavit  of  claim  should  be  filed  \%nth  the  declaration, 
regardless  of  when  the  suit  is  actually  commenced. '^^ 

490  Amendment 

An  affidavit  of  claim  is  subject  to  amendment  the  same  as 
any  pleading  in  the  case.'^- 

«5Kern    v.    Strasberger,    71    111".  Bank.   91    111.   75,    76    (1878);    Sec. 

303.  .305    (1874);   Sec.  55.  Practice  55.  Practice  act  1907. 

act   1907.  70  Xew    York    National    Exchange 

«"  Honore  v.  Home  National  Bank,  Bank    v.    Reed.    232    111.    123.    125 

80  111.  489.  490    (1875);   Garrity  v.  (1908).     For  forms,  Bee  actions  of 

Lozano,  supra;  Wilder  v.  Arwedson,  assumpsit,    debt,    etc. 

80    111.    435,    436    (1875);    Sec.    55,  7i  Honore      v.      Home      National 

Practice  act  1907.  Bank,  80  HI.  491;  Sec.  55,  Practice 

6T  Haggard  v.  Smith,  71  111.  226,  act  1907. 

227    (1874).  72Healv  v.  Charnley,  79  111.  592, 

08  Honore      v.      Home      National  594    (1875);    Sees.   39,  55,  Practice 

Bank,  80  111.  491.  act  1907. 

«» Gottfried    V.    German    National 


174  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

491  Objections,  practice 

The  only  way  to  raise  objection  to  an  affidavit  of  claim  is  by 
refusing  to  file  an  affidavit  of  merits  with  the  plea;  objections 
or  exceptions  to  the  plaintiff's  affidavit  come  too  late  after 
default.73 

KULE  TO  PLEAD 

492  Practice 

The  rule  to  plead  must  either  be  attached  to,  or  endorsed 
upon,  the  declaration,  and  served  personally  on  the  defendant.'^* 

493  Requisites 

In  actions  aj^ainst  several  defendants  commenced  by  declara- 
tion, liu"  rule  to  plead  must  be  against  all  of  the  defendants."** 

494  Form 

In  the  al)ove  mentioned  cause,  upon  motion  of , 

attorney  for  said  plaintiff,  it  is  ordered  that  the  above  named 
defendant  appear  and  plead  to  the  declaration  in  s^ud  cause 
within  fifteen  days  after  service  upon  said  defendant  of  a  copy 
of  said  declaration  and  notice  of  this  rule,  in  accordance  with 
the  statute  in  such  cases  made  and  provided. 
Dated,  etc. 

,  Clerk. 

,   Plaintiff's  attorney. 

Business  address. 

495  Entry  of  rule 

A  mere  irregularity  in  the  entry  of  a  rule  to  plead  is  not 
jurisdictional  where  the  notice  is  regular  and  the  defendant  has 
been  given  ample  time  in  which  to  plead. '^'^ 

NOTICE  TO  PLEAD 

496  District  of  Columbia 

The  defendant  is  to  plead  hereto  on  or  before  the  20th  day, 
exclusive  of  Sundays  and  legal  holidays  occurring  after  the 
day  of  the  service  hereof;    otherwise  judgment. 

Attorney  for  plaintiff. 

73  Knott  V.  Swannell,  91  111.  25,  75  Ralston  v.  Chapin,  49  Mich, 
26  (1878);  Kern  v.  Strasberger,  71      274,  277  (1882). 

111.  303,  305    (1874).  76  Howe   v.    Maltz,  35   Mich.    500 

74  (9985),  C.  L.  1897,  amended  in       (1877). 
1905. 


DECLARATION  175 

497  Maryland 

To  defendant: 

Take  notice  that  on  or  before day  of , 

19..,  you  will  be  required  to  plead  to  the  foregoing  declara- 
tion, or  judgment  will  be  rendered  against  you  by  default. 

or 

To  the  defendant: 

Take  notice  that  on  the  day  of  your  appearance  in  this 
court  in  this  action,  a  rule  will  be  entered  requiring  you  to 
plead  to  the  declaration  herein  within  fifteen  days  thereafter. 


Attorney  for  plaintiff. 

498  Michigan 

To  th»*  within  named  defendant: 

Take  notice,  that  on  tiling  a  declaration  in  this  cause  of  which 
the  within  is  a  true  copy,  as  commencement  of  suit,  a  rule  to 
plead  was  endorsed  thereon  and  tiled  therewith  (or,  a  rule  was 
entered  in  the  book  of  common  rules,  kept  by  the  clerk  of  said 

court  in  his  office  in  the  city  of ),  requiring  you  to 

appear  and  plead  to  said  declaration  within  fifteen  days  after 
the  serviee  on  you  of  a  copy  thereof  and  of  notice  of  said  rule, 
or  judgment,  etc. 

Dated,  etc. 


Attorney  for  plaintiflP. 
DEMAND  FOR  JURY 


499  Election 

To  the  honorable,  the  judge  of  said  court: 

The  plaintiff  in  the  above  entitled  cause  elects  to  have  the 
same  tried  before  a  jury,  and  begs  leave  of  court  so  to  do. 


Attorney  for  plaintiff. 
500  Notice 

To  the  defendant: 

Take  notice  that  the  plaintiff  in  the  above  entitled  cause 
electa  to  have  the  same  tried  before  a  jury. 


Attorney  for  plaintiff. 
PRAECIPE 


501  Maryland 

Mr.  Clerk :  . 

Please  issue  summons  for  the  defendant,  and  send  a  copy  of 


176  ANNOTATED   FORMS  OF   PLEADING  AND  PRACTICE 

the  declaration  with  the  writ,  and  make  the  writ  returnable  the 
Monday  of ,  19. . 

or 
Mr.  Clerk: 

Please  issue  in  this  ease,  and  send  copy  of  the  declaration  and 
notice  with  the  writ,  to  be  served  on  the  defendant,  and  make 
the  writ  returnable  on  the of 


Attorneys  for  plaintiff. 

SERVICE 

502  Statute  of  limitations 

An  action  commenced  by  declaration  is  not  begun  for  the 
purpose  of  preventing  the  running  of  the  statute  of  limitations 
until  there  is  personal  service  upon  the  defendant  of  a  copy  of 
the  declaration  and  the  rule  to  plead.'^''^ 

503  Service,  by  whom 

In  suits  commenced  by  declaration,  the  service  of  a  copy 
thereof  may  be  made  by  private  persons,  or  by  the  plaintiff. 
This  applies  to  all  plaintiff's,  even  to  deputy  sheriffs.'^® 

504  Proof,  requisites;  presumption 

The  affidavit  or  return  of  service  must  show  service  of  notice 
of  the  rule  to  plead."^  If  service  is  had  upon  more  than  one 
defendant,  the  return  or  affidavit  must  specifically  show  that 
a  copy  of  the  declaration  and  rule  to  plead  were  served  upon 
each  of  the  defendants.^^  The  affidavit  need  not  show  the 
authority  of  the  officer  before  whom  it  is  made  if  he  is  one  of 
the  officers  of  whose  authority  a  court  takes  judicial  notice.^^ 
The  time  of  service  is  sufficiently  stated  in  a  return  if  the  date 
of  service  appears  in  the  jurat  of  the  affidavit.^^  j^  the  absence 
of  a  statement  in  the  affidavit  of  service  showing  where  the  de- 
fendant was  served,  it  will  be  presumed  that  the  service  was 

77  Detroit  Free  Press  Co.  v.  Bagg,  so  Campbell  v.  Donovan,  69  N.  W. 

78  Mich.   650,  654    (1889).  514,  515    (Mich.   1896). 

7  8  Munn  V.  Haynes,  46  Mich.  140,  si  Norvell    v.    McHenry,    1    Mich. 

142  (1881);  Penfold  v.  Slyfield,  110  227,  233  (1849). 

Mich.  344,   345.  82  Norvell  v.  McHenry,  supra. 

79  Anderson    v.    Cole,    72    N.    W. 
615   (Mich.  1897). 


DECLARATION  177 

made  in  the  proper  county  or  place.  The  statute  does  not 
require  in  an  affidavit  of  service  the  statement  of  the  place  of 
service.^^ 

505  Proof,  forms   (District  of  Columbia) 

District  of  Columbia,  ss. 

I,  having  been  duly  sworn,  do  afifirra  and  say,  that  I  am  per- 
sonally acquainted  with  the  defendant,  ,  and  that 

on  the day  of ,  19 .  . ,  I  have  served  a 

copy  of  the  declaration,  notice  to  plead,  affidavit  and  bill  of  par- 
ticulars filed  in  this  cause  upon  the  defendant, in 

at    ,  at  about    o  'clock  in 

noon  of  said  day. 


Subscribed,  etc. 

(Michigan) 

being  duly  sworn,  says  that  on  the    

day  of , ,  he  served  a  declaration  of  which 

the  within  is  a  copy,  on  ,  the  defendant  named  in 

said  declaration,  by  delivering  to  said  defendant,  in  said  county 

of ,  a  true  copy  thereof,  together  with  a  true  copy 

of  the  notice  to  appear  and  plead,  endorsed  thereon  as  hereon 
endorsed. 


Subscribed,  etc. 

or 

I  hereby  certify  and  return,  that  on  the    day  of 

,  19.  .,  I  served  the  declaration,  of  which  the 

within  is  a  copy,  on  the  township  of  ,  the  defendant 

named  in  said  declaration,  by  delivering  to  said  defendant's 

supervisor ,  at  the of , 

in  said  county  of ,  a  true  copy  thereof,  and  of  the 

foregoing  bill  of  particulars,  and  the  notice  relating  thereto, 
together  with  a  true  copy  of  the  notice  to  appear  and  plead 
endorsed  thereon  as  hereon  endorsed. 

Fees 


Under-sheriff. 

506  Proof,  contradicting 

A  return  of  personal  sen'ice  made  by  a  private  person  is  not 
conclusive  upon  the  defendant,  and  it  may  be  contradicted.^^ 

83  Norvell  v.  McHenrj,  supra.  Detroit  Free  Press  Co.  v.  Bagg,  78 

8* Campbell    v.    Donovan,    supra;      Mich.  650,  653. 


178  ANNOTATED   FORMS  OF    PLEADING   AND   PRACTICE 

FILING 

507  Time 

In  actions  commenced  by  declaration,  the  actual  filing  of  the 
declaration  must  precede  the  service  of  a  copy  thereof.^^ 

508  Delivery  to  clerk 

The  delivery  of  an  instrument  or  pleading  to  the  proper  offi- 
cer, if  received  by  him  for  filing  and  kept  on  file,  constitutes  a 
filing;  and  the  failure  of  the  officer  to  place  his  file-mark  on 
the  instrument  so  i)resented  and  received,  and  his  omission  to 
actually  keep  the  document  on  fiie  do  not  effect  the  validity  of 
the  filing.8« 

509  Dismissal  for  want  of  Narr.,  practice 

Upon  plaintiff's  failure  to  file  a  declaration  within  the  time 
required  by  statute  and  ruh's,  it  is  mandatory  in  Virginia,  upon 
the  clerk  to  enter  the  suit  dismissed;**'  and  if  he  fails  to  do 
so,  the  court  has  authority  to  correct  the  misprision  at  the  suc- 
ceeding term ;  ^**  but  it  has  no  power  to  grant  leave  to  the  plain- 
tiff to  file  his  declaration  then,  except  upon  good  cause  shown. 
The  clerk's  dismissal  of  a  suit  is  in  the  nature  of  a  non  suit,  and 
no  suit  will  be  reinstated  merely  for  the  reason  that  the  plaintiff 
may  suffer  inconvenience  or  loss  by  reason  of  its  dismissal.^^ 

510  Dismissal,  motion 

And  now  comes  the  said  defendant,  by  its  attorneys,   ...... 

,  and  enters  its  appearance  for  the  purposes  of  this  motion 

only  and  moves  the  court  to  dismiss  the  above  entitled  cause, 
and  for  cause  of  such  dismissal  says  that  said  suit  was  begun  on 
the day  of ,  19  •  • ,  and  summons  issued  return- 
able to  the term  of  said  court ;  that  said  summons  was 

returned  as  served  on  the  day  of ,  19 .  . ,  on 

said  defendant;  that  plaintiff  has  failed  and  neglected  to  file 
a  declaration  in  said  cause,  and  for  that  reason  the  defendant 
moves  for  a  judgment  in  accordance  with  the  statute  in  such 
cases  made  and  provided. 

Dated,  etc. 

85  Ellis  V.  Fletcher,  40  Mich.  321  87  Sec.  3241,  Code   (Va.). 

(1879);    South   Bend    Chilled   Plow  »»  See.  3293.  Code    (Va.). 

Co.     V.     Manahan,     62     Mich.     143  so  Wickham  v.  Green,  111  Va.  199 

(1886).  (1910). 

86Beebe  v.  Morrell,  76  Mich.  114, 
120  (1889). 


DECLARATION  179 

511  Dismissal,  cross-motion 

And  now  comes  the  said  plaintiff  by  ,  his  attor- 
ney, and  objects  to  defendant's  said  motion  to  dismiss  said 
cause  and  the  plaintitf  now  enters  cross-motion  for  leave  to  with- 
draw said  declaration  and  to  tile  the  same  as  of ,  19 . . 

AMENDMENT 

512  Generally 

A  declaration  is  subject  to  amendment  at  any  time  before  final 
judgment.®'^  It  is  competent  for  a  court  to  permit  an  amend- 
ment of  a  declaration,  at  any  time  before  final  judgment,  to 
conform  to  the  proofs,  and  thereby  to  remove  an  objection  on 
the  ground  of  variance.»>  A  court  has  power  to  grant  leave  to 
amend  the  declaration  after  all  of  the  evidence  has  been  sub- 
mitted to  the  jury  and  the  case  is  partially  argued  before  them.02 
Leave  to  amend  the  declaration  may  be  granted  upon  a  cross- 
motion  for  the  same,  after  a  motion  has  ]>een  made  to  exclude  the 
evidence  from  the  jury  and  to  direct  a  verdict.^* 

513  Ad  damnum 

The  ad  damnum  is  matter  of  form  and  not  substance,  and  it  is 
amendable  after  verdict."^ 

514  Additional  count 

A  count  which  is  stricken  from  the  files  remains  a  part  of  the 
declaration  and  may  form  the  basis  of  an  additional  count.®^ 

515  Immaterial  matter 

A  count  which  sets  up  useless  elements  of  recovery  may  be 
reformed  on  the  ground  that  it  is  calculated  to  embarrass  a  fair 
trial  of  the  case.®® 

00  Cocrghall  V.  Beeslev,  7fi  111.  44.t  °^  Grimes  v.  Hilliary,  150  111.  141. 

(1875)?  Sec.  39.   Practice  act    1907  144    (1894);    Sec.   39,   Practice   act 

(Hurd's  Stat.   1009.  p.   1699):  Bay-  1907. 

lor   V.    Baltimore   &    Ohio   R.    Co..   9  o'TomlinPon  v.  Earnshaw,  m  111. 

W.   Va.   270.   279    (1876).  311.  319   (1884). 

81  Brennan  v.  Straii-is,  75  Til.  234.  «5  Shaughnessy    v.    Holt,    236    111. 

235    (1874);    Kennedy    v.    Swift    &  485,  487    (1908).            ,    „    .,      p    ^ 

Co       234     111      606      612      (1908);  oo  Tillis   v.    Liverpool   &    L.    &   Or. 

Pranke  v.  Ha'nlev.  21--  111.  216.  218  Ins.   Co..  46   Fla.   268,   276    (1903); 

(1905);   Sec.  39.'  Practice  act    1907.  Sec.   1043.  Rev.  Stat.    (Fla.). 

»2Chicapo  &  P.  R.  Co.  v.  Stein, 
75  111.  41.  43  (1874);  Sec.  39.  Prac- 
tice act  1907. 


180  ANNOTATED   FORMS  OF   PLEADING   AND  PRACTICE 

616  Parties,  discontinuance 

The  omission  from  an  amended  declaration  of  a  party  who  was 
made  defendiint  to  the  original  declaration  is  a  discontinuance 
of  the  suit  against  the  omitted  defendant.''" 

517  Statute  of  limitations 

A  declaration  which  merely  states  the  cause  of  action  in  a 
defective  manner  and  which  has  been  filed  within  the  limitation 
period  may  be  made  the  basis  of  an  amendment  or  of  an  addi- 
tional count  after  the  expiration  of  the  limitation  period.  But, 
a  declaration  which  states  a  wholly  defective  cause  of  action  can- 
not be  made  the  basis  of  an  amendment  or  of  an  additional  count 
after  the  limitation  period  has  expired.^** 

The  introduction  of  a  new  cau.se  of  action  by  amendment,  or 
the  refiling  of  previously  withdrawn  counts,  amounts  to  the 
commencement  of  a  new  suit  at  the  time  that  the  amendment  is 
made  or  that  the  counts  are  refiled.^^  All  intendments  and 
inferences  which  may  reasonably  be  deduced  from  the  facts 
stated  in  an  original  declaration  are  in  its  favor  in  determining 
whether  it  states  a  cause  of  action.^ "^'^  Matter  in  avoidance  of 
the  statute  of  limitations  cannot  be  availed  of  by  an  amendment 
to  the  declaration,  but  the  defense  must  be  interposed  by 
replication. ^*^i 

PRACTICE 

518  Stipulation 

Insufficiency  of  averment  in  pleadings  may  be  cured  by  stipu- 
lation of  the  parties.^"- 

519  Notice,  necessity 

In  case  of  an  amendment  which  changes  the  cause  of  action 
from  joint  to  that  of  several  after  one  of  the  defendants  has 

9T  Malleable    Iron    Eange    Co.    v.  Co..  64  111.  128,  140  (1872);  Eylen- 

Pusey,   244  111.    184,   200    (1910).  feldt   v.    Illinois   Steel  Co.,    165  111. 

98  North    (Jhicago    Street    R.    Co.  18.5,  187    (1897). 

V.     Aufmann.     221     111.     614,     619  99  Bradlev  v.  Chicagro-Virden  Coal 

(1906);    Lee    v.    Republic    Iron    &  Co.,   231    111.    627,   628;    Walters   v. 

Steel  Co.,  241  111.  372,  378    (1909);  Ottawa.  240  HI.  262. 

Bradley  v.  Chieago-Virden  Coal  Co.,  loo  Klawiter  v.  Jones,  219  HI.  626, 

231   111.   622.  626    (1908);   Klawiter  629   (1906). 

V.  Jones,  219  111.  626,  629    (1906)  ;  loi  Giinton  v.  Hughes,  181  HI.  132, 

Bahr  v.  National  Safe  Deposit  Co..  135   (1899). 

234    111.    101,    103    (1908);    Illinois  102  Lolir  Bottling  Co.  v.  Ferguson, 

Central  R.   Co.   v.    Cobb,   Christy   &  223  111.  88,  95. 


DECLARATION  181 

been  defaulted,  the  defaulted  defendant  should  be  served  with, 
a  copy  of  the  amended  declaration  to  afford  him  an  opportunity 
to  contest  the  right  to  proceed  severally. ^"^ 

520  Notice,   form 

To  ,  attorney  for  defendant : 

Please  take  notice  tliat  the  annexed  are  true  copies  of  a  motion 
filed  in  said  cause  for  an  order  permitting  an  amendment  to 
said  plaintiff's  declaration,  and  of  the  amendim^nt  proposed  to 
be  made  in  pursuance  of  said  motion,  and  that  said  motion  will 

be  brought  on  for  hearing  on  the day  of at 

the  court  room  in of ,  in  said  county  at 

o'clock,  or  as  soon  thereafter  as  counsel  can  be  heard. 

(Signatures  and  business  address) 

521  Motion  (Michigan) 

Now  comes  the  said  plaintiff, ,  by , 

his  attorney,  and  moves  the  court  for  an  order  permitting  the 
said  plaintiff  to  amend  his  declaration  in  the  above  entitled  cause 

by  adding  a  further  count,  to  stand  as  the count 

of  the  .said  declaration,  a  copy  of  which   count  is 

hereto  annexed. 

This  motion  is  based  upon  the  tiles  and  records  in  this  court 
and  cause. 

Dated,  etc. 

Order 

After  an  appeal  to  the  supreme  court  from  a  judgment  ren- 
dered in  favor  of  the  phiintiff  upon  a  former  trial  by  which 
the  case  was  reversed  and  remanded  to  this  court  for  a  new 
trial,  the  plaintitf  now  comes  into  court  upon  a  motion  to  amend 
his  declaration.  The  matter  has  been  brought  on  for  hearing  in 
open  court  and  counsel  for  the  respective  parties  relative  to  the 
motion  have  been  heard.  After  due  consideration  of  the  same  it 
is  hereby  ordered  that  said  plaintiff  be  and  hereby  is  allowed 

to   amend    his  declaration   by   adding  thereto   a    

count,  a  copy  of  which  is  attached  to  said  motion. 

In  view  of  the  misfortunes  and  pecuniary  circumstances  of 
the  plaintiff  in  this  cause,  this  motion  is  allowed  without  costs 
or  other  conditions. 

Dated,  etc. 


Judge. 


103  Munn  v.  Haynes,  46  Mich.  140, 
146  (1881). 


182  ANNOTATED    FOKMS   OP   PLEADING    AND    PKACTICE 

522  Petition  (Maryland) 

To  the  honorable  the  judges  of  said  court. 

The  petition  of  the  plaintiff  in  the  above  entitled  case  respect- 
fully shows  unto  your  honor: 

1.  That  on  the day  of ,  19-  -,  she  sued  in 

this  court  the  defendant  in  the  above  case. 

2.  That  on  account  of  information  recently  received  by  the 
counsel  of  your  petitioner,  your  petitioner  is  desirous  to  ide  an 
amended  declaration,  as  may  be  done  under  section  35  of  article 
75  of  the  Code  of  Public  General  Laws  of  the  state  of  iMaryland. 

Wherefore,  your  petitioner  prays  the  eourt  to  pass  an'order 
allowing  and  autliorizing  your  petitioner  to  file  an  amended 
declaration,  as  prayed  in  the  premises. 


Attorneys  for  petitioner. 
Order 


Upon  the  foregoing  petition  it  is  ordered,  this  day 

of ,  19.  .,  by  the  circuit  court  for county, 

that  leave  be  and  the  same  is  hereby  granted  the  plaintiff  in 
the  above  entitled  case  to  file  therein  an  amended  declaration. 


Judge. 

523  Additional  count,  commencement 

And  the  said  plaintiff, ,  by  leave  of  the  said  court 

first  obtained,  here  amend  he       declaration   by  inserting 

therein  the  following  additional  counts  immediately  after  the 
first  (two)  counts  thereof  now  on  file,  to  wit: 

524  Amendment,  commencement 

,   a  corporation   organized   and  existing  under 

aiid  by  virtue  of  the  laws  of  the  state  of ,  plain- 
tiff    >  by , attorney     ,  by  leave  of  court 

first  had  and  obtained,  files  this amended  declaration, 

and  herein  and  hereby  complain  of  and 

,  defendants,  having  been  duly  summoned  to  answer  said 

plaintiff    ,  of  a  plea  of 

525  Notice  of  amendment 

To ,  attorney  for  defendant : 

Please  take  notice  that  the  annexed  and  foregoing  is  a  true 
copy  of  amendment  to  the  declaration  in  the  above  entitled 
cause  and  this  day  filed  herein  in  pursuance  of  an  order  of 
said  court  made  and  entered  the day  of 19 . . 

Dated,  etc. 


DECLARATION  183 

526  Effect  of  amendment 

An  original  count  is  abandoned  and  superseded  by  an  amended 
count  which  is  complete  in  itself.^*^"* 

CONSTRUCTION 

527  Averments,  immaterial,  surplusage 

An  allegation  which  is  not  material  to  a  recovery  may  be 
regarded  as  surplusage  and  rejected. ^"^  So,  an  additional  count 
which  requires  no  new  evidence  to  sustain  it,  is  useless  and 
harmless.*"* 

528  Averments,  material,  omission 

The  omission  of  a  material  averment  in  a  declaration  may 
be  cured  by  the  plea.*"'  In  West  Virginia,  unless  judgment 
cannot  be  given  on  account  of  the  omission  of  .something  which 
is  es.sential  to  the  cau.se  of  action  or  the  defense,  a  court  is 
bound  to  consider  a  declaration  as  sufficient  on  demurrer.*'*® 

529  Defects  cured  by  verdict 

The  want  of  an  express  averment  in  a  declaration  of  any 
matter  which  is  necessary  to  be  proved  and  without  proof  of 
which  the  jury  could  not  have  given  the  verdict,  is  cured  by 
the  verdict,  if  tlie  dechiratioii  states  a  cau.se  of  action  defectively 
and  it  contains  terms  which  are  sufficiently  general  to  include, 
by  fair  and  reasonahh'  intendment,  the  facts  defectively  or 
improperly  stated  or  omitted.  But  an  omission  is  not  cured  by 
verdict,  if  the  declaration,  with  all  of  the  intendments  in  its 
favor,  fails  to  state  a  cause  of  action. *"»    Defects  in  a  declara- 

104  Maeperlein  v.  Chicago.  237  Til.  liff    v.    Rudnik.    212    111.    569,    577 

159.   16.3    (1908).  (1904);   Danley  v.  Hibbard,  222  111. 

losTillis  V.   Liverpool  &  L.   &  G.  88,  90    (1906);    McAndrews  v.   Chi- 

Ins    Co     46  Fla    279  cago  Lake  Shore  &  Eastern  Ry.  Co., 

io«Mallov  V.  Kellv- Atkinson  Con-  222   111.   232,   241    (1906);    Walters 

Btruction     Co.,     24o'  111.     102,     104  v.    Ottawa.    240,    2.59,    267    (1909); 

(1909)  Chicago,  Rock  Island  &  Pacific  Ry. 

loVpubens   V.   Hill,    213    HI.    523,  Co.    v.    People,    217    111.    164,    172 

537    (1905).  (1905);    Chicago    &    Alton    R.    Co. 

108  Baylor  v.  Baltimore  &  Ohio  R.  v.    Clausen,    173    111.    100,    103,    104 

Co..  9  W.  Va.  281;  Blaine  v.  Chase-  (1898);  Wright  v.  Bennett.  3  Scam. 

peake  &  Ohio  R.  Co.,  9  W.  Va.  252,  258,    2.59    (1841);    McLean    County 

261,    262    (1876)-    Sec.    29,    c.    125,  Coal    Co.    v.    Lang,    91    111.    621; 

Code   ( VV    Va  )  Peebles  v.  O  'Gara  Coal  Co.,  239  Dl. 

106  Sargent    Co.    v.    Baublis.    215  370,  374,  375    (1909). 
DL   428,   430,   431    (1905);    Hinch- 


184  ANNOTATED    FORMS   OF    PLEADING   AND   PRACTICE 

tion  which  would  have  been  fatal  on  demurrer  and  to  which  the 
general  issue  was  pleaded  are  cured  by  the  verdict. ^^"  So,  a 
declaration  may  be  considered  good  after  default,  although  it 
might  have  been  subject  to  a  special  demurrer.^  ^^  Mere  formal 
defects  are  cured  by  the  verdict.^^-  The  rule  that  a  defective 
declaration  is  cured  after  verdict,  applies  to  cases  in  which  the 
evidence  has  not  been  preserved  by  a  bill  of  exceptions;  but  it 
is  doubtful  if  this  rule  applies  to  cases  in  wliich  the  record  pur- 
ports to  contain  all  of  the  evidence,  and  in  which  it  appears 
that  there  is  no  evidence  of  a  fact  that  is  essential  to  the  right 
of  recovery.1^2 

530  Form  of  action,  identity,  law  and  fact 

The  form  of  an  action  is  determined  from  the  technical  aver- 
ments of  the  declaration,  and  not  from  its  introduction  or 
commencement.^^-*  The  identity  of  a  cause  of  action  contained 
in  different  pleadings  must  be  determined  by  the  court,  as  a  ques- 
tion of  law,  from  the  face  of  the  pleadings,  without  reference 
to  extrinsic  facts  or  evidence.^^^ 

531  Good  and  defective  counts 

At  common  law  one  bad  count  in  a  declaration  containing 
several  counts  is  sufficient  ground  for  arrest  of  judgment  upon 
an  entire  or  general  verdict.^  ^"^  In  Illinois,  one  good  count 
supported  by  the  evidence  is  sufficient  to  sustain  an  entire 
or  a  general  verdict  and  judgment  upon  several  counts,  some 
of  which  are  bad.^^'''  This  does  not  mean  that  there  must  be 
one  or  more  entirely  good  counts,  but  the  rule  applies  as  well  to 
a  count  which  defectively  states  a  cause  of  action.i^s 

no  Barker  v.  Koozier,  80  111.  205,  Ins.    Co.,    220    111.    514,    516,    521 

207  (1875);  Toledo,  Peoria  &  War-  (1906). 

saw  Ey.  Co.   v.   McClannon,   41   111.  ii«  Scott    v.    Parlin    &    Orendorff 

238,  240  (1866)  ;  Briggs  v.  Milburn,  Co.,  245  111.  460,  464   (1910). 

40  Mich.  512,  513   (1879),  i it  Scott    v.    Parlin    &    Orendorff 

111  Lawver  v.  Langhans,  85  111.  Co.,  supra;  Sec.  78,  Practice  act 
138,  142   (1877).  1907;   Bennett  v.   Chicago   City  Ey. 

112  Pittsburg,  C.  C.  &  S.  L.  Ey.  Co.,  243  111.  420,  434  (1910);  Peoria 
Co.  V.  Chicago,  242  111.  178,  185  Marine  &  Fire  Ins.  Co.  v.  Whitehill, 
(1909).  25    111.    385     (1861);     Anderson    v. 

iisDama  v.  Kaltwasser,  72  111.  Semple,  2  Gilm,  455,  458  (1845); 
App.   140    (1897).  Eoe  v.  Crutehfield,   1  Hen.  &   Mun. 

114  Toledo,  Wabash  &  Western  Ey.       361,  365  (Va.  1807). 

Co.     V.     McLaughlin,     63     111.     389  ns  Bennett    v.    Chicago    City    Ey. 

(1872).  Co.,  243  111.  434. 

115  Heffron   v.    Eochester    German 


DECLARATION  185 

532  Several  declarations 

The  last  or  final  declaration  filed  is  the  one  which  controls  the 
rights  of  the  plaintiff,  where  several  declarations  are  on  file  in 
the  same  caiise.^^^ 


110  HanFell-Elpook  Foundry  Co.  V. 
Clark,  214  111.  399,  412   (1905). 


CHAPTER    XIV 
APPEARANCE 

IN  GENERAL  CONSTRUCTIVE  APPEARANCE 

85  §§ 

533  Appearance  in  person  and  by       540  Generally 

^"^'•"ey  543  Instances 

534  Infants,  practice 

535  Authority,  presumption;  prac-  SPECIAL  APPEARANCE 

tice  544  WalTer 


GENERAL   APPEARANCE 


545  Appearance 

546  Motion  to  quash  summons 


536  Nature  and  effect 

537  Time  WITHDRAWAL 

FORMS  ^^^  Nature  and  effect 

,„„  _  *  548  Forms 

538  District  of  Columbia 

539  Florida  SUBSTITUTION 

540  Illinois  549  Necessity 

541  Michigan  550  Forms 

IN  GENERAL 

533  Appearance  in  person  and  by  attorney 

A  party  to  a  civil  action  may  appear  in  person  or  by  attor- 
ney ;  but  he  cannot  in  Michigan,  appear  on  the  record  in  person 
and  by  attorney.*  At  common  law  a  party  against  whom  process 
has  been  issued,  may  appear  without  service,  or  before  the 
process  is  served  upon  him. 2 

534  Infants,  practice 

A  minor  must  appear  by  guardian,  and  not  in  person  or  by 
attorney;  if  there  is  no  guardian  the  plaintiff  should  make 
application,  before  plea,  for  the  appointment  of  a  guardian 
ad  litem.^ 

1  (1116).  C.  L.  1897  (Mich.)  speak    v.    Shasted,    21    111.    137 

2  Ralston  v.  Chapin,  49  Mich.  274,  (1859);  Herdman  v.  Short,  18  III. 
276     (1882)  ;    Crull    v.    Keener,    18      60,  61  (1856). 

HI.  65,  66    (1856). 

186 


APPEARANCE  '    187 

535  Authority,  presumption;  practice 

The  appearance  by  an  attorney  is  .presumed  to  be  under 
authority  of  the  defendant;  but  this  presumption  may  be  re- 
butted if  done  in  apt  time.^  During  the  term  a  defendant  who 
has  not  been  served  with  process  and  who  has  not  authorized 
his  appearance  may  have  the  proceedings  taken  against  him 
set  aside  where  an  attorney  has  appeared  for  him  without 
authority.^  The  client  alone  has  the  right  to  dispute  an  attor- 
ney's power  to  appear  for  him.  It  cannot  be  done  by  a  third 
party.® 

GENERAL  APPEARANCE 

536  Nature  and  effect 

A  general  appearance  cannot  confer  jurisdiction  upon  a 
court  which  has  no  jurisdiction  of  the  subject  matterJ  But 
an  unlimited  appearance  will  waive  jurisdiction  over  the  person.^ 
It  also  waives  iiisufTicieut  service  of  process;"  and  all  irregulari- 
ties in  the  process  are  waived  whether  the  irregularities  are 
substantial  or  formal. ^^  So,  a  general  appearance  by  a  corpora- 
tion waives  defects  in  the  service  upon  it."  A  general  appear- 
ance in  a  cause  by  officers  or  members  of  a  private  or  public 
corporation  waives  defects  in  a  notice  as  to  them  in  an  individual 
capacity,  but  does  not  waive  defects  as  to  the  corporation.' 2  A 
special  appearance  entered  for  the  purpose  of  objecting  to  the 
jurisdiction  of  the  court  is  waived  by  subsequently  appearing 
generally. *3  a  general  apearance  by  an  attorney  is  equivalent 
to  service  of  process.*-*  The  mere  entry  of  an  appearance  does 
not  dispense  with  the  requirement  to  file  a  declaration  within 
the  8tatutor\'  time  before  taking  default.'' 

<  Leslie  V.  Fischer,  62  m.  118.  119  nS36) ;    Dart    v.    Hercules,    .34    El. 

(1871).  395,  402   (1864);  Reed  v.  Curry,  35 

8  Leslie  v.  Fischer,  mpra.  111.  536.  539   (1864). 

"Martin   v.   Judd,   60    111.    78.   84  n  Bills  v.  Stanton,  69  111.  51,  54 

(1871).  (1873). 

T  Murphy  v.  People,  221  HI.   127,  12  People  v.    Jones,    254   111.   521, 

130    (1906").  522  (1912). 

8  Grand  Pacific  Hotel  Co.  v.  Pink-  '^  People  v.  Smythe.  232  111.  242 

erton.  217  111.  61.  84   (1905).  (1908). 

»  Mason  &  Taz.'well  Special  Drain-  1*  Abbott   v.    Semple    25    111.    107 

age  District  v.  Griffin,  134  111.  330,  (1860). 

337   (1890).  15  Hoes    v.    Van    Alatyne,    16    111. 

loEaston  v.   Altum,   1   Scam.   250  384    (1855). 


188  ANNOTATED    FORMS   OF   PLEADING   AND   PRACTICE 

537  Time 

A  defendant  who  has  been  sued  but  who  has  not  been  served 
with  process  has  a  right  to  appear  at  any  time  before  trial. i<i 

FOEMS 

538  District  of  Columbia 

1^  The  clerk  of  said  court  will  enter  my  appearance  for  the 
defendant  herein. 

Dated 


Attorney  for  defendant. 
539  Florida 

To  the  clerk  of  the court : 

You  will  please  enter  my  appearance  as   attorney   for  the 

,  a  corporation, ,  and  , 

the  defendants  in  the  above  styled  cause  on  the  rule  day  in 
,19-. 


Attorney  for  defendant. 
540  Illinois 

I  hereby  enter  my  appearance  in  this  cause,  and  request  the 
clerk  of  said  court  to  enter  the  same  of  record. 
Dated,  etc. 


Defendant. 
or 


We  hereby  enter  the  appearance  of  the  above  defendant,  and 
our  appearance  as  attorneys  for  him. 
Dated,  etc. 


As  associate  counsel 

We  hereby  enter  our  appearance  in  the  above  entitled  cause  as 
associate  counsel,  with for  the  defendant, 


Attorneys  for  defendant. 
541  Michigan,  practice 

In  suits  commenced  by  declaration  the  clerk  is  required  to 
enter  the  defendant's  appearance  upon  the  filing'  of  the  affidavit 

leEalston  v.  Chapin,  supra;  Pen-  it  See  Section  211,  Note  60. 

fold  V.  Slyfield,  110  Mich.  343,  346 
(1896). 


APPEARANCE  189 

or  of  a  return  of  service ;  and  if  the  clerk  neglects  to  make  such 
an  entry,  the  omission  may  be  supplied  by  an  order  nunc  pro 

tUHC.^^ 

Appointment 

I   hereby   appoint    ,   esquire,   of . , 

Michigan,  my  attorney  in  the  above  entitled  cause,  and  authorize 
him  to  appear  and  to  take  such  steps  in  the  conduct  of  said 
cause  as  may,  from  time  to  time,  become  necessary. 

Dated,  etc. 


Defendant. 
Notice  to  clerk 


To  the  clerk  of  the  above  entitled  court : 

You  will   please   enter  my  appearance  as  attorney  for  the 
defendant ,  in  the  above  entitled  cause. 

Dated,  etc. 

Yours,  etc., 


Attorney  for  defendant. 
Notice  to  plaintiff 


To ...: 

Attorney  for  above  named  plaintiff. 
You  will  please  take  notice  that  I  have  this  day  been  retained 
as  attorney  for  the  defendant,  ,  in  the  above  enti- 
tled cause,  and  that  I  have  caused  my  appearance  to  be  entered 
as  attorney  for  said  defendant  in  the  above  entitled  cause. 
Dated,  etc. 

Yours,  etc. 


Business  address. 
(Attach  affidavit  of  service) 


CONSTRUCTIVE  APPEARANCE 

542  Generally 

A  person  may  become  a  party  by  appearing  and  participating 
in  the  proceeding.^^ 

543  Instances 

A  party  will  be  regarded  as  having  appeared  generally  for 
all  purposes  where  he   fails  to  limit  his  appearance   for  any 

isNorvell    v.    McHenry,    1    Mich.  1 9  Chicago  v.  Walker,  251  111.  629, 

227,   234   (1849).  633    (1911). 


190  ANNOTATED    FORMS   0I-'    PLEADING    AND    PRACTICE 

specific  purpose.2^  The  making  of  a  motion  for  a  separate  jury, 
without  limiting  the  appearance,  amounts  to  a  general  apjx'ur- 
ance  for  all  purposes.-^  So,  the  making  of  a  motion  to  quash 
service  of  a  copy  of  an  amended  summons,  without  limiting  the 
appearanee  to  the  purpose  of  the  motion,  amounts  to  a  general 
appearance.--  In  actions  against  several  defendants  the  appear- 
ance by  an  attorney  for  "defendants"  is  regarded  as  an 
appearance  for  all  of  the  defendants,  although  some  of  them 
were  not  served  with  process,  unless  the  record  negatives  the 
presumption  that  the  appearance  was  so  intended.-^  But  a 
motion  by  "defendants"  to  set  aside  a  default  which  was  taken 
against  several  defendants  is  not  a  general  appearance  by  one 
of  the  defendants  who  has  not  been  served  with  process  and 
against  whom  no  default  coukl  have  been  rendered. 2* 

SPECIAL  APPEARANCE 

544  Waiver 

All  objections  that  might  be  raised  at  one  time  must  be  urged 
upon  a  special  appearance,  or  the  objections  that  are  not  raised 
will  be  considered  to  have  been  waived.-'^  A  motion  to  dismiss 
a  suit  on  the  ground  of  variance  between  the  writ  and  the  decla- 
ration is  not  such  an  appearance  as  waives  the  variance.-''  A 
party  docs  not  waive  his  rights  acquired  under  a  special  appear- 
ance by  merely  appearing  generally  for  the  sole  purpose  of 
insisting  upon  a  plea  to  the  jurisdiction,  if  he  does  not  take 
action  in  defense  of  the  vsuit  upon  its  merits.-^  An  appearance 
for  the  purpose  of  objecting  for  want  of  notice,  does  not  waive 
notice.     It  is  only  a  general  appearance  which  waives  notice.-*^ 

545  Appearance 

I   hereby   enter   a   limited   and   special   appearance   for   the 

20  Flake  v.  Carson,  33  HI.  518,  319  (1862) ;  Clemson  v.  State  Bank, 
526   (1864),  1  Scam.  45   (1832). 

21  Martin  v.  Chicago  &  Milwaukee  25  Norton  v.  Dow,  5  Gilm.  459, 
Electric    E.    Co.,    220    111.    97,    99  461   (1849). 

(1906).  26  Schoonhoven    v.    Gott,    20    111. 

22Eddleman      v.      Union      County       46,48   (1858). 

Traction  &  Power  Co.,  217  111.  409,  2-  Gemundt    v.    Shipley,    98    Md. 

412   (1905).  657,  664  (1904)  ;  Dexter  v.  Lichliter, 

23  Kerr    v.    Swallow,  33    111.    379,       24  App.  D.  C,  222,  228   (1904). 
380   (1864).  28  People  v.  Jones,  254  111.  523. 

24Klemm   v.    Dewes,  28   111.   317, 


APPEARANCE  191 

defendant  in  the  above  entitled  cause,  for  the  purpose  of  con- 
testing the  sheriff's  return  on  the  summons  issued  in  said  cause. 


Attorney  for  defendant  as  aforesaid. 

546  Motion  to  quash  summons 

And  now  this  day  comes  the  above  named  defendant,  

,  by    ,  its  attorney,  who  appears  specially 

and  solely  for  the  purpose  of  this  motion,  and  moves  the  court 

to  quash  the  writ  of  summons  issued  herein  on  the . 

day  of ,  1J1-  ■  ;  and  in  support  thereof,  begs  to 

refer  to  the  following  in  part  recited  facts  appearing  of  record 
in  this  court,  to  wit: 

1 ,  10..,  the   above  entitled  suit  was  brought 

against 

2 ,  19.  .,  a  suit  was  commenced  in  this  court  by 

the  said    against  the  said    ,  general 

number ,  for  tlie  siime  cause  of  action  as  declared 

on  in  the  present  suit,  and  this  defendant  was  duly  summoned 
therein. 

3 19.  .,  the  followintr  plea  of  abatement  was,  by 

leave  of  court  first  had  and  obtained,  filed  in  the  present  suit, 
to  wit:  (Insert  plea.) 

4.     On  19.  .,  and  some  time  after  the  said  plea  of 

abatement  had  been  filed  in  the  present  suit,  the  said  plaintiff, 
without  notice  to  this  defendant,  procured  the  dismissal  of  his 
said  suit,  general  number 

5 ,   19..,  the  siiid   plea  of  abatement  came  on  to 

be  heard  before  this  court,  and  after  evidence  had  been  offered 
and  received,  and  the  arguments  of  counsel  had  been  heard,  and 
upon  consideration  thereof,  tlie   court  sustained  the  said  plea 

of  abatement  and  ordered  that  as  to   the  writ  be 

qua.shed.  and  suit  dismissed  at  plaintiff's  cost;  and  judgment 
was  thereupon  entered. 

6.     On    19..,  the  said  plaintiff,  without  notice  to 

this  defendant,  procured  leave  of  this  court  to  make  it  a  party 

defendant  to  his  said  suit,  general  number ,  from  which 

it  had  the  previous  day  been  dismissed;  and  upon  the  same  day, 

to  wit ,  19.  .,  it  was  again  summoned  as  a  party  defend- 

j'nt  herein. 

For  which,  and  other  reasons  hereafter  to  be  shown  to  the 

court,  the  said  defendant,    ,  moves  that  the  writ 

lately  isssued  against  it  be  quashed. 

Attornev    for    


192  ANNOTATED   FORMS  OF    I'LKADlMi    AND   PKACTICE 

WITHDRAWAL 

547  Nature  and  effect 

An  attoriu-y's  witlulrawal  of  liis  appearance  for  tlu-  iklVud- 
ant  must  be  specific  and  uueiiuivocal.-"  The  witlidrawal  of  an 
attorney's  appearance  is  not  the  witlulrawal  of  his  client's 
appearance/'"  The  witiidrawinj,'  of  a  plea  in  bar  does  not 
withdraw    the    appearance. '* 

548  Forms  (District  of  Columbia) 

The  clerk  of  said  court  will  please  enter  my  appearance  in  the 
above  cause  withdrawn. 

(Illinois) 
We  hereby  withdraw  our  appearance   for   the   defendant    in 
the  above  entitled  cause. 

Dated  this day  of ,  1!).  . 

I  hereby  enter  my  appearance  for  the  defendant  in  the  above 
entitled  cause  and  adopt  the  demurrer  tiled  in  said  cause  to  the 
declaration. 

Dated  this day  of ,11).. 

SUBSTITUTION 

549  Necessity 

As  the  law  recognizes  only  those  attorneys  who  appear  of 
record  in  a  case,  attorneys  who  are  employed  to  take  the  place 
of  record  counsel  should  have  an  order  of  substitution  entered 
of  record  inmiediately  upon  taking  charge  of  a  pending  case. 
Appearance  and  pleading  without  an  order  of  substitution  is 
ineffectual.^- 

550  Forms  (Illinois) 

We  hereby  enter  our  appearance  as  attorneys  for  the  defend- 
ants in  the  above  entitled  cause,  in  lieu  of  the  appearance  of 
,  deceased. 


29  Hefling  v.  Van  Zandt,  162  111.  3i  Dart  v.  Hercules.  34  111.  403. 

16"     166    (1896)  ^-  Landvskowski    v.    Lark,    66    N. 

^0  Mason   v.   Abbott,    83   111.    445,      W.  371,  372    (Mich.  1896). 
446    (1876);    Bills    v.    Stanton,    69 
111.  54. 


APPEARANCE  193 

(Michigan) 

I  hereby  consent  that  of  ,  Michi- 
gan, be  substituted  in  my  place  as  attorney  for  the  above  named 
defendant. 


Attorney  for  defendant. 

On  reading  and  filinpr  consent  in  writing,  and  on  motion  of 

substituted  attorney  it  is  ordered  that  the  said 

be,  and  he  is  hereby,  substituted  in  the  phice  of as 

attorney  for  the  above  named  defendant. 

Dated,  etc. 


Attorney  for  defendant. 
Husiness  address. 


CHAPTER    XV 

ABATEMENT   AND   OTUEIi    UlLAToKV    PLEAS 


IN  GENERAL 

§§ 

551  Plea  in  abatement   defined 

552  Abatement  and  revival 

553  Nature  of  right 

554  Waiver 

555  Practice,  abatement  or  bar 

556  Practice,  motion  or  plea 

557  Requisites 

558  Verification,    power    of    attor- 

ney, neeesslfy 

559  Verifhation.    power    of    attor- 

ney, form 

560  Verification,  necessity  and  re- 

quisites 
501  Verification,  forms 
5C2  Amendment 
5C3  JudRment,  defendant 
5C4  Judgment,  plaintiff 

jrKISDICTION  OF  THE  COURT 

565  Practice 

566  Plea,  requisites 


JURISDICTION    OF 
SON 

567  Plea,  nature 


THE    PER 


REQUISITES 

568  Pleading  and  signing 

569  Averments,  generally 

570  Averments,      negativing      ap- 

pearance 

571  Averments,    negativing   juris- 

diction 

572  Averments,  proper  court 

573  Averments,     traversing     dec- 

laration 

574  Verification,   necessity 

575  Amendment 


FORMS 

576  Commencement 
elusion 


and 


577  Nonresidents,   individuals 

578  Nonresidents,   several   detenu 
ants 

579  Railroad  company 
5S0  Tort  actions 

581  Witness'  privilege 

ABATEMENT   OF   THE   WRIT 

582  Nature  of  plea 

583  Requisites   of   plea    generally 

584  False    return,    plea,    practice 

585  False   return,   plea.   r<(iul8ltes 

586  False  return,  plea,  form 

587  Misjoinder  and  nonjoinder  of 
parties 

588  Misnomer,   waiver,  practice 

589  Misnomer,  plea,  requisites 

590  Misnomer,  plea,  form 

591  Misnomer,  replication 

592  Nul   tlel   corporation,   defend- 
ant, practice 

593  Variance,  motion,  nature 

594  Variance,  plea,  form 

COUNT  OR  DECLARATION 

595  Law  or  rules  governing 

596  Abatement  by  death;    nonsur- 
viving  action,  plea 

597  Abatement    by    statute,    peti- 
tion and  order 

598  Bankruptcy,  waiver,  pleading 

599  Bankruptcy,  motion 

600  Bankruptcy,     petition,     order 
and  notice 

601  Bankruptcy,  plea 

602  Bankruptcy;  T[>lea.  puis  darrein 
continuance,  replication,  re- 

joinder and  verdict 
.      603  Extension      of      performance, 
plea,  requisites 

194 


ABATEMENT   AND  OTHER   DILATORY    PLEAS  195 


604  Further    maintenance    of    ac-      606  Pendency  of  another  suit,  dis- 

tion,  plea,  requisites  continuance 

605  Partnership,  plea  and  replica-      607  Pendency     of     another     suit, 

tion  plea,  requisites 

608  Plcnf  administravit 

IN  GENERAL 

551  Plea  in  abatement  defined 

A  plea  in  abatomunt  is  that  which  objects  to  the  place,  mode 
or  time  of  asserting'  the  plaiutitV's  claim,  without  disposing  its 
justness,  HMjuiriiij,'  judgment  for  the  defendant,  and  leaving  it 
open  to  renew  the  suit  in  another  place,  or  form,  or  at  another 
time.' 

552  Abatement  and  revival 

At  comiiinii  law,  actions  of  tort  do  not  snr\'ive  the  death  of 
the  sole  plaintitV  or  (h'fmdant.-  An  actinn  docs  not  al)atc  ujion 
the  plaintiff's  death  under  Illinois  vVbatemcnt  act,  nor  in  cases 
where  an  action  survives. '  I'pon  the  |)Iaintiff's  death,  the  action 
must  be  revived  in  the  name  of  all  of  the  survivors,  or  repre- 
sentatives.* This  has  no  application  to  actions  of  ejectment 
under  Illinois  statute.^ 

553  Nature  of  right 

A  defendant's  rijfht  to  plead  in  abatement  is  an  absolute  and 
valuable  right."  The  dct'endant  has  a  legal  right  to  compel  the 
plaintiff  to  comply  with  all  the  forms  of  the  law  before  he  can 
be  recjuired  to  answer.^ 

554  Waiver 

A  pica  in  abatement  must  be  filed  at  the  earliest  practicable 
opportunity.'*  The  interposition  of  a  motion  in  the  place  of 
a  plea  in  abatement,  waives  the  right  to  plead  in  abatement.® 

»  PittB    Sons'    Mfjf.    Co.    v.    Com-  «  Miinn  v.  Haynes,  4G  Mich.   140, 

mercial  National  Bank,  l-:i   ill.  0^2,  142   (1R81). 

587    (1887).  '  Ka.ston    v.   Altum,    1    Scam.   250, 

2  Jones   V.    Barmm,    217    111.    381,  251    (18.36). 

382   (1905).  "  Easton   v.  Altiim,  xuprn ;  Hallo- 

»  SeMon   v.    Illinois  Trust   &   Sav-  way  v.  Freeman.  22  111.   197  (18.59). 

iuRS   Bank.   239    III.   »i7.   77    (1909).  » Halloway    v.     Freeman,    22    111. 

♦  Funk  V    StubblefipM.  62  III.  405.  197,  202;   Martin  v.  CTiicafjo  &  Mil- 

407   (1872).  waukee  Electric  R.  Co.,  220  111.  97, 

»Fuiik  V.  Stubblefield,  supra.  100  (1906). 


1<JG  ANNOTATED   FORMS  OP  PLE.\DING    AND    IKACTICE 

So  the  right  to  plead  in  abatement  is  waived  by  filiut'  a  pK*a  in 
bar."'  Thf  ri^'ht  to  pKad  in  abatement  is  also  waived  by 
demurriuK'  to  the  deehiration.'^  Formal  delects  in  process  are 
waived  by  appearance,  pleading?  to  the  merits  and  trial  with- 
out objection.'-  An  objection  to  the  form  of  the  action  must 
be  specifically  urged  at  the  iirst  opportunity,  or  the  objection  is 
waived.'^  The  misjoinder  of  actions  ex  delicto  in  form  is 
waived  by  pleadinir  to  the  merits  and  going  to  trial  without 
objection.'-*  Thr  nonjoinder  of  parties  (h  fi-ndant  is  waived, 
unless  it  is  pleaded  in  abatement. '=  A  variance  between  the 
writ  and  the  declaration,  if  material,  must  be  pleaded  in  abate- 
ment or  by  motion  nuide  in  apt  time.'" 

555  Practice,  abatement  or  bar 

Any  defect  in  llu-  writ,  its  .service  or  return,  which  is  appar- 
ent from  an  inspection  of  the  record,  may  properly  be  taken 
advantage  of  by  motion,  but  where  the  objection  is  founded  upon 
extrinsic  facts  the  nuitter  must  be  pleaded  in  abatement.'" 
Matter  which  shows  that  the  plaintitV  cannot  maintain  any 
action  at  any  time  must  be  pleaded  in  bar;  matter  which  merely 
defeats  the  present  proceeding,  and  which  does  not  show  that 
the  plaintiff  is  forever  conchuled,  must  be  pleaded  in  abate- 
ment.'»  In  an  action  upon  a  contract  brought  before  the  indebt- 
edness is  due  under  an  ext.'nsiou  of  time,  the  extension  must 
be  pleaded  in  abatement  and  not  in  bar.'*' 

556  Practice,  motion  or  plea 

Any  objection  or  nuitter  which  is  founded  upon  extrinsic 
facts  must  be  pleaded  in  abatement,  so  that  an  issue  may  be 
formed  thereon  and  tried,  if  desired,  by  a  juiy,  like  any  other 

10  Lamb  V.  Chicago,  219  111.  229,  le  Toledo.  Waba..h  &  Western  Ry 

o-i±   noofi^  Co.  V.  McLaughlin.  b3  111.  3b9,  A^l 

Mvaker'  v.  Walker,   14  HI.   277  (1872);    Weld    v.   Hubbard,    11   111. 

/TSro>,  573,  .574   (18.50);   Brockman  v.  Mc- 

^12  Knott  V.  Pepperdine,  63  HI.  219  Donald.  16  111.  112   (1854) 

n872^  17  Greer   v.    Young,    120    111.    184, 

^13  Citizens'    Gaslight    &    Heating  191    (1887)  ;    Holloway  v.  Freeman, 

Co    V    Granger  &  Co.,  118  111.  266,  22  111.  197,  203;  McNab  v.  Bennett, 

271    (1886);    Sec.   39,   Practice  act  66  111.  157,  1.^9  (18/-j. 

1907  18  Pitts    Sons'    Mfg.    Co.   v.   Com- 

iiHelmuth  V.   Bell.   150  111.   263,  mercial  National  Bank,  121  111.  582, 

268   ri894)-  Harlem  V.  Emmert,  41  587    (1887);    Waterman    v.    Tuttle, 

111    3^19.  323    (1866);   c.   7,  Kurd's  18  HI..  292    293    (1857) 

Stat    1909    p    154  i9  Pitts    Sons'    Mfg.   Co.   v.   Com- 

16  Porter  v.  Leache,  56  Mich.  40,  mercial  National   Bank,  supra. 
41    (1885). 


ABATEMENT  AND  OTHER   DILATORY   PLE.\S  197 

issue  or  lact ;  but  any  defect  in  the  writ,  its  service  or  return 
which  is  apparent  from  an  inspection  of  the  record,  may  prop- 
erly be  taken  advantage  of  by  motion.-"  A  motion  to  dismiss 
for  want  of  jurisdiction  is  proper  where  the  objections  appear 
on  the  face  of  the  pleadings;  this  defense  must  be  urged  by 
plea  in  abatement  where  the  objections  are  dehors  the  record.-^ 
The  omission  to  make  necessary  parties  may  be  urged  without 
a  plea  in  abatement  when  the  want  of  these  parties  appears  on 
the  face  of  the  declaration  or  pleadin?.--  Matters  dehors  the 
return  must  be  raised  by  plea  and  not  by  motion.-** 

557  Requisites 

Grt-at  aL-curacy  and  i)recision  are  nt'ct'ssary  in  the  structure 
and  form  of  pleas  in  abatement. -■•  They  must  specify  truly  the 
parties  in  the  cause.-*  They  must  aver  enough  facts  to  give 
the  plaintilT  a  better  writ;  and  tlit-y  must  show  how  another 
action  against  the  tlrfrndant  mi|,'lit  be  brought  in  case  the  plea 
should  prove  to  be  true-"  A  pba  in  abatenu*nt  must  be  posi- 
tive and  certain,  and  not  argumentative.-"  Certainty  to  every 
intent  is  essential.-"*  That  is  regarded  certain  which  nuiy  be 
rendered  certain.^®  The  subject  matter  of  a  plea  in  abatement 
must  be  matter  of  abatement,  and  not  matter  in  bar  of  the 
action.'**  The  plea  in  abatement  must  conclude  by  praying 
judgment  of  the  writ  and  that  the  same  may  be  quashed ;  or  if 
the  writ  abates  de  facto,  by  praying  judgment  if  the  court  will 
further  proceed.^*  All  pleas  in  abatement  must  conclude  with 
the  prayer  that  the  suit  shall  abate.^-  A  plea  in  abatement 
must  be  signed  by  counsel. ^*^ 

20  Willard   v.    Zi-hr.    2\r)   111.    14S,  ;«  Ameriran   Express  Co.  v.   Hag- 
155    (19U5);    Halloway   v.    Frft-iiiaii.  jjanl.  'M  111.  40."),  472   (18G5). 
»upra;  Greer  v.  Young,  12o  111.  1?S4,  -"  LocomotivL*  Fireman  v.  Cramer, 
191.  1G4    111.    9,    1.3    (189G). 

21  McNab  V.  Bennett,  66  111.  157,  28  Wales  v.  Jones.  1  Mich.  254, 
159.  256    (1849);    Pitts   Sons'    Mfg.   Co. 

22  Powell  V.  People,  214  111.  475,  v.  Commercial  National  Bank,  121 
479  (19U5);  aimminj^  v.  People,  50  111.  582,  587. 

111.    i:i2,    i:i5    (l^f.it):    Loftwich    v.  =»  Parsons    v.    Case,    45    111.    296, 

Berkeley,    1    Hen.    \-    Munf.    Gl.    60  297    (1867). 

(1806);    Newell  v.    Wood,   1   Munf.  so  pitts  Sons'   Mfg.   Co.   v.    Com- 

555    (1810).  mercial  National  Bank,  121  111.  588. 

23  Putnam  Lumber  Co.  v.  Ellis-  ai  Ross  v.  Nesbit,  2  Gilm.  2.j2,  257 
Younjf  Co.,  .',0  Fla.  251.  260  (1905).  (1845). 

2«  WiUard    v.    Zehr.    215    111.    148,  32  Chicago  &  Northwestern  Ry.  Co. 

155.  1.56.  V.  Jenkins,  103  111.  588,  593  (1882). 

23  Halloway    v.    Freeman,    22    111.  ''■'  Halloway    v.    Freeman,    22    111. 

197,   202.  197,  203. 


198  ANNOTATKI)    FORMS    OF    I'l.K  \|)IN(i    AND    PRACTICE 

558  Verification;  power  of  attorney,  necessity 

A  plea  iu  uhati'iiunl  hy  a  corporation  verilifil  liy  an  apent 
or  attoriu'y  must  be  supi)orteil  by  a  power  of  attorney  Iroin 
the  corporation  authori/inj;  the  verifieatiou ;  which  power  may 
be  filed  with  the  plea  or  iifterwards.^* 

559  Verification;  power  of  attorney,  form 

Know  all   iiitii  l>y  the<e  presents,  that  the   has 

made,   constituted   and   api'ointed,   and   by   tliese   pres«'nts  does 

make,  constitute  and  appoint    of  the  city  of 

its  ti-ue  and  lawful  attorney  for  it  and  in  its  name 

and  on  its  belialf  to  make,  execute  and  tile  a  plea  of  altatemmt 
to  the  writ  of  attachment  and  the  gjirnishee  process  issued  out 

of  the   court  of county  in  the  state 

of   in  a  certain  suit  of  attachment  now   pending 

in  said  court  wherein and are  plain- 

titVs  and   the    is  defi'iidjint.  and  to   make  and   fib' 

any  other  jtapi-r  in  its  name  he  may  ileem  necrssary  in  said 
cause;  hereby  ratit'yinjf  ami  contirminj,'  whatever  its  said  attor- 
ney may  hiwfuUy  do  in  the  premises. 

Witness  tlie by its  pr«'sident  and 

its  eoi-porate  si'al  l>v its the 

day  of '..  .,  lit.  . 


Hy    

its 


(Corporate  seal) 


560  Verification,  necessity  and  requisites 

The  truth  ol"  a  plea  in  abatement,  except  as  hereinafter  noted, 
or  of  any  other  dilatory  plea,  must  be  verified  by  affidavit  or 
by  some  other  eviilence.^^  An  affidavit  verifyinfr  a  plea  in 
abatement  must  state  that  the  plea  is  true  in  substance  and  in 
fact,  and  not  to  the  best  knowled.u'e  and  belief. •'^•'  An  unverified, 
or  improperly  verified,  plea  in  abatement  may  be  rejected  or 
stricken  from  the  files  on  motion. •'''  An  affidavit  which  is  on 
the  same  paper  as  the  plea  in  abatement  need  not  restate  the 
title  when  the  plea  itself  contains  a  complete  title  of  the  case.^* 

^*  See    Union    National    Bank    v.  3c  Spencer  v.  Aetna  Indemnity  Co., 

First    National    Bank,    90    111.    56  231  111.  82,  83,  84   (1907). 

(1878).  37  Spencer    v,    Aetna    Indemnity 

35(10070),   C.   L.    1897    (Mich.);  Co.,  svpra. 

Ross    V.     Nosbit.    i^uprn :    Evan    v.  38  Cook   v.   Tanvood,   41    111.    115, 

Lander,  SO  111.  .554   (1878)."  118    (1866). 


ABATEMENT    AND   OTIIEK    DILATORY    PLEAS  199 

561  Verification,  forms   (District  of  Columbia) 

^^ Ijfiuir  duly  sworn,  on  oath  di-poscs  and  says 

that  she  has  read  the  foregoing  motion  by  her  subseribetl  and 
knows  the  eoutents  thereof,  aiid  that  the  matters  and  facts 
therein  set  forth  are  true. 


Subscribed  and  sworn  to  at  the  eity  of Distriet 

of  ('(»luMd)ia.  b«-fore  me,  a  notary  publie  duly  eonnnissioned  in 

and  for  said  District  of  Columbia,  this *  dav  of     . 

19.. 


Notary  I'ublic,  D.  C. 
(Notarial  seal) 

(Illinois) 

the  defendant    in    this   cause   makes  oath   ami 

says  that  the  plea  hcnto  annexeil  is  true  in  sub.stance  and  in  f.iet. 


Sub.scribed,  etc. 

(Maryland) 

State  of  Maryland,  city  of to  wit : 

I  hereby  certify,  that  on  this day  of ,  If).  ., 

before  me.  the  subscriber,  a  justii-e  of  the  peace  of  said  state 

in  ami  for  said ,  pei-sonally  appeared 

and  Miade  oath  in  due  form  of  law  on  the  Holy  Kvangely  of 
Almighty  God,  that  the  above  plea  is  true  in  substance  and  in 
fact. 


(Virginia) 

I»  a  notary  pui>Iie  in  and  for  the  said  city 

and  county  certify  tluit  personally  appeared  be- 
fore me  in  said  city  and  made  oath  that  he  is  the  (president,  or 
vice  president)  of  the  railway  company,  the  de- 
fendant in  the  pica  hereto  attached  in  the  suit  of v, 

and  that   he  verily  believes  the  said  plea  to  be 

true. 

Given  under  iriv  hiind  and  notarial  sciil  this day  of 

'. ..  i;».. 


Notary  Public. 
••See  Section  211,  Xote  60. 


200  ANNOTATED    FORMS   OF    I'LEADING    AND    I'KACTICE 

(West  Virginia) 

,   the  defendant    named    in   the   foregoini;  ploa, 

being  duly  sworn,  says  that  the  i'aets  and  allegations  therein 
contained  are  true,  exeept  so  far  as  they  are  therein  stated  to  Ihj 
on  information,  and  that  so  far  as  they  are  therein  stated  to  bo 
upon  information,  she  believes  tiiem  to  be  true. 

Taken,  sworn  to  and  subseribed  before  me  this day 

of ,  11).. 


Notary  public  in  and  for county,  West  Virginia. 

(Notarial  seal) 

562  Amendment 

A  plea  in  abatement  is  not  amendable,*^  except  a  plea  in 
abatement  to  the  jurisdietion  over  the  person.**  Nor  is  it  per- 
missible to  plead  in  abatement  a  second  time  upon  the  disposi- 
tion of  a  previous  similar  plea.*^ 

563  Judgment,  defendant 

On  an  issue  of  faet  or  law,  a  judgment  for  the  defendant 
must  be  that  the  writ  shall  be  quashed;  or  if  a  temporary  dis- 
ability or  privilege  is  pleaded,  that  the  plaint  remain  without 
day  until,  etc.*^  In  rendering  judgment  for  the  defendant  on 
a  plea  in  abatement,  the  trial  court  has  no  discretion.'*'*  And 
the  error  is  not  of  a  ehai-aeter  that  a  def(>ndant  might  waive."" 
At  common  law,  no  costs  can  be  awarded  a  defendant  on  an 
issue  of  law."*" 

564  Judgment,  plaintiff 

On  sustaining  a  demurrer  to  a  plea  in  abatement  or  to  a  repli- 
cation, and  a  finding  for  the  plaintiff,  the  judgment  should  be 
quod  rcs!pondcat  ouster.*'^  Upon  the  trial  of  an  issue  of  fact 
raised  by  a  plea  in  abatement  and  finding  for  the  plaintiff,  the 
judgment  should  be  quod  recuperet.*^     So,  should  there  be  a 

40  Cook   V.    Yarwood,   supra;   Sec.  <■*  McKinstry  v.  Pennoycr,  1  Scam. 

11,  e.  7,  Kurd's  Stat.  1909,  p.  1.55.  320. 

■*!  Spencer  v.  Aetna  Indemnity  Co.,  *^  Spaulding  v.  Lowe,   58  111.   96, 

supra.  97    (1871). 

*^  Cook  V.  Yarwood,  siipra.  46  McKinstry  v.  Pennoyer,  1  Scam. 

43  McKinstry  v.  Pennoyer,  1  Scam.  320. 

319,   320    (1836);   Cushman   v.   Sav-  4T  McKinstrv  v.  Pennoper.  svpra ; 

age.    20   111.    330    (1858);    Scott   v.  Bradshaw  v.  Morehouse,  1  Gilm.  395. 

Waller,    65    111.    181,    184    (1872);  396   (1844). 

Campbell  v.  Hudson,  106  Mich.  523,  48  Italian-Swiss    Agricultural    Col- 

528    (1895).  ony    v.     Pease,     194     111.     98,     100 


ABATEMENT   AND  OTHER    DIL-\TORY   PLEAS  201 

judgment  quod  recuperet  upon  a  issue  of  fact  raised  by  a  plea 
in  al)attMia'nt  for  tlie  nonjoinder  of  defendants,  although  the 
only  issue  joined  is  upon  the  abatement  of  the  action.'*^ 

JURISDICTION  OF  THE  COUET 

5C5  Practice 

Under  Illinois  practice,  the  want  of  jurisdiction  of  a  court 
of  treneral  jurisdiction  can  only  be  raised  by  plea  in  abatement.'*^ 
In  Michigan,  it  is  permissible  to  interpose  an  objection  to  the 
jurisdiction  of  the  court  by  motion  supported  by  aflSdavits.*^ 

066  Plea,  requisites 

A  plea  to  the  jurisdiction  of  tlie  court  must,  by  averment  of 
facts  accurately  and  logically  stated,  exclude  every  intendment 
in  favor  of  the  jurisdiction  of  tlie  court  of  general  and  unlim- 
ited jurisdiction.^-  Tlie  pleader  must  set  up  such  facts  as  would 
clearly  oust  the  court  of  jurisdiction. '^^  If  a  declaration  con- 
tains causes  of  action  which  are  within  the  jurisdiction  of  the 
court,  and  some  of  which  are  not,  the  pica  must  be  to  the  causes 
of  action  of  which  the  court  has  no  jurisdiction. °*  A  plea  to 
the  jurisdiction  should  conchulc  by  praying  judgment  "whether 
the  court  ought  to  have  further  conusance  of  the  suit. "'^' 

JTJRISDirTION  OF  THE  PERSON 

567  Plea,  nature 

A  plea  to  the  jurisdiction  of  the  person,  as  distinguished  from 
a  plea  to  the  jurisdiction  of  the  court,  is  meritorious  in  its 
character  and  is  founded  upon  statutory  right. ^°  A  plea  claim- 
ing the  statutory  privilege  of  being  sued  in  the  county  of  one's 

(1901);     McKiDStrv     v.     Pennoyer,  63  Willard    v.    Zehr,    215    111.    1.'5.'5, 

supra;  Gro.r  v.  Young.  120  111.  i«4,  l.')6;   Diblee  v.   Davison.   2'}  111.   486 

191;   Mineral  Point  R.  Co.  v.  Keep,  (1861);    Dunlap   v.   Turner,   64   111. 

22    111.    9,     19     (18.59);     Brown    v.  47   (1872). 

Illinois  Cfntral   Mutual  Ins.  Co.,  42  »«  Diblee  v.   Davison,   25   HI.   486. 

111.  366,369   (1866).  ss  Drako    v.    Drake,    83    111.    526, 

«»GoKpin    V.    O'Donnell,    62    111.  528    n876). 

66,   67    (1871).  sBHumj.hrev    v.    Phillips,    57    111. 

toWillanl  V.  Zvhr.  215  111.  155.  135;    Saffnrd   v.    Saneamo   Ins.   Co., 

5t  Havwoo.I   V.   Johnson,   41    Mich.  88    111.    296,    297     (1878);     Sec.    6, 

598,   605    (1879).  Practice  act  1907;  Drake  v.  Drake, 

52  Humphrey    v.    Phillips,    57    111.  83  111.  529. 
135. 


20*2 


ANNOTATED   FORMS   OK    I'll  AUINQ    AND   I'RACTICB 


reaidence  is  not  a  plr^a  to  tho  jurisili<tJon  of  tho  rourt.*^  The 
rij?ht  to  Ik*  Hiu-d  in  oiu'h  rounty,  liow.  v«t,  iimy   !  •!  by 

the  tlefeiulant  if  uot  ph-Hil'-tl  in  apt  lituc.^*  The  o:  ,  :i  can- 
not he  raistMl  hy  thiiiiirirr,  or  upon  writ  of  error,  after  default.^-* 
It  camiot  Im-  phaded  after  the  tjeneral  issue  has  U-en  intrr- 
pos.'d.""  Thf  tilink'  of  an  amended  deehiration  whieh  merely 
restafts  the  eausr  of  action  with  more  parti«'ularity  than  it  in 
Htat.'.l  in  the  orik'inal  de<  laratiou  does  not  give  the  riKht  to  pha.l 
to  thr  jurisdiction  of  thr  court  where  the  general  iasue  to  th.- 
original  ih'claration  remains  on  tile,'* 

RF.gnsrnsB 

568  Pleadiuij  and  signing 

A  pli-a  to  th<'  jurisdiction  hy  an  indi%'idual  should  Im»  in  per- 
son, anil  not  hy  attorney.'-  The  plea  should  Iw  in  the  name  of 
the  drfciKlant.  willutut  naming  hinis.-lf  as  such,  and  it  shouUl  he 
si^rned  hy  him.'-  The  plea  by  corporation  auL'rcL'ate  naist  be 
hy  attorney  alon«'.''* 

5G9  Averments,  generally 

.\  pUa  to  thf  juri.sdiction  must  n«'initive  evrry  jtiiis'ii.ti..niil 
jzrounil  enumerated  in  the  statiite.  althou^'li  it  tlunhy  renders 
the  plea  objectionable  on  the  ground  of  iluplieity.''* 

570  Averments,  negativing  appearance 

A  plea  denying  service  of  proeess  must  ne<_'arivr  a  stibmis- 
sion  to  the  jurisdiction  by  appearance  or  otherwise.'*' 


»•  Hiimphrov  v.  Phillips.  57  111. 
1.1«>.  1.-^7. 

6^  Iluinjthrov  v.  Phillips,  nupra; 
Drake  v.  Drajce,  S3  111.  .^>'JS;  Hardy 
V.  Adams,  48  111.  532,  533  (1^68); 
Wallace  v.  Cox.  71  111.  548.  549 
(1S74);  Sandusky  v.  Sidwell.  173 
111.  493  (1898)  ;  See.  6.  Practice  act 
1907;  Toledo.  Wabash  &  Western 
Rv.  Co.  V.  Williams,  77  111.  354.  35(i 
(1875)  Mason  &  Tazewell  Si.ecial 
Drainage  District  v.  GritHn.  134  111. 
3311;  Humphrey  v.  Phillips,  57  111. 
13ti;  Keiinev  v.  Greer,  13  111.  432, 
449,  450    (1851). 


so  Wallace  v.  Cox.  mipra ;  Hardy  v. 
Adam.s.   4S   III.   .5.32.  5.33    (1M68). 

«•>  Toledo.  Wal.a.sh  \  W.st«'rn  Ry. 
Co.  V.   Heiipi.  s.-,   III.  so,  sj    (1877). 

«i  Toledo.  Wal-ash  i.  Western  Ry. 
Co.  V.  liegps.  supra. 

«=  Min  ral  Point  R.  Co.  v.  Keep, 
22   111.   19. 

rt3  Drake  v.  Drake.  S3  111.  527. 

'»»  Nispel  V.  Western  Union  R.  Co., 
G4  HI.  311,  313   (1872). 

«'■  Deatrick  v.  State  Life  Ins.  Co., 
107  Va.  fi02.  filO    (1907). 

'■'••  Waterbnrv  National  Bank  v. 
Reed,  231  111.  246,  25o  (1907). 


ABATEMENT    AND   OTllEk   DILVTORY   PLEAS  203 

571  Averments,  negativing  jurisdiction 

A  i»k'a  lo  lli<  junsdiition  of  tlif  person  sliould  negative  the 
existt-nce  of  other  defeuciunts  and  tlie  commencement  of  the 
Huit  under  the  attachment  hiws  of  tlie  state,  unless  these  facts 
anirmativcly  appear  from  the  record.*'^ 

672  Averments,  proper  court 

A  plea  to  the  jurisdiction  of  the  person  need  not  show  what 
court  ha*  jurisilielion.  provided  the  ph-a  does  show  that  the 
court  has  no  jurisdietion  over  the  defendant  or  defendants,  or 
either  of  thrm.'*" 

573  Averments,  traversing  declaration 

If  the  tlrelaralion  i«»ii«,ij,ts  of  more  than  one  count,  the  plea 
Mhould  netfativc,  .Hpecifieally  the  cauiie  of  action  set  up  in  each 
couut.^' 

574  Verification,  nec««*ity 

It  in  not  ne<'«i«ary.  under  Illinois  practiee.  that  a  plea  to  the 
jurisdiction  of  the  person  uliould  In?  verified   liy  afli<lavit.^" 

675  Amendment 

A  plea  to  the  jurisilietion  of  the  person  may  he  amended  in 
Illinois,  notwithstandint;  the  statutory  provision  against  the 
amendment  of  a   i)lea   in   abatement.*' 

»X)RMS 

57C  Commencement  and  conclusion 

And  now  the  Kai«l    in  his  own  proper  person, 

comes  and  says  that  this  court  ought  not  lo  have  or  take  further 
eogni/anee  of  the  aforesaid  action,  an  to  the  said  supposed  causes 
of  aetion.  and  eath  and  every  of  them,  mentioned  in  said  plain- 
tiff's declaration,  lu-cause  he  says: 

*i  HumpbrpT    v.    I'hillips.    57    III,  ^i  SafTonl  r.  Sancamo  Ins.  Co.,  88 

137.                   '  111.   -i»fi.  -97    (1S7«(:    Mi(ilan<J    I'a- 

••Midlan.l   Pafifir  Rr.  Co.  ▼.  Mc-  cifio    Rv.   Co.    v.    M'l)<Tipi.l,   HI    111. 

Dermi.l.   yi    HI,    17o.    174    (1«*78).  170,    172;    Drake   v.    I))ake.   8.1    111. 

••Humphrov   v.   I'hillipx.  .".n/^ra.  528;    8cc.    11,    c.    7,    Uiird's    Stat. 

TO  Howe    V.' Thavor.    24    III.    240,  1909;  Sec.  39,  Pra<t ice  act  1907. 
248    (I860);    .Sw. 'l,    r.    1.    Hur.l's 
Stat.   1909;   Drake  v.  Drake,  s.!  111. 
527,   528. 


204  ANNOTATKU    FuUM.S   uK    l'UL\DINa    ANb    I'RACTICC 

Conclusion 

Whereforo  prays  jud^'ment  whether  this  court 

can,  or  will,  takt-  lurther  cogniziiiJce  ol   the  ul'urt*8iud  uetiou.'^ 

577  Nonresidents,  individuals 

(Commence  and  concludi'  as  in  Section  576)  that  before  and 
at  the  time  of  the  coiimit'iu'riiirnt  of  this  suit,  tlif  sjiid  di'ft'iulant 
was,  and  at  all  tiiiu's  sint'»'  the  toininemeinent  of  this  suit  the 
said  defendant  has  Ikhmi,  and  still  is,  a  resident  of  the  county  of 

,  in  the  state  of ,  and  did  not.  at  the 

commencement   of   the   suit,    nor   does    he    now    reside    in    .said 

county  of ;  nor  has  Ije  Ikm'u  found  nor  8erve<l  with 

process  in  said  action  in  .sjiid  county  of  or  else- 
where than  in  said  county  of 

And  the  ilefendant  further  avers  that  the  .sjiid  plaintiff  was 
not,  at  the  commencement  of  siiid  action,  a  resident  of  said 
county. 

And  this  deferulanf  is  ready  to  verify;  wherefore,  etc." 

(Verification  as  in  Section  aGl ) 

(Maryland) 

And  tlie  said  in  liis  own  proper  person,  comes 

and  defends  the  wronjj  ami  injury  when,  &c.,  and  prays  judjf- 
ment  of  the  writ  aforesiiid,  ami  al.so  of  the  declaration  of  the 
said  plaintifV  against  the  said  deff-ndant  tlu-reon  founded, 
because  lu'  says  that  he  now  doth,  ami  on  the  day  of  the  impetra- 
tion  and  suinj^  f(»rtli  the  said  orii^inal  writ  of  summons  of  the 
said  plaint itY       did.  and    for  a   lon^  time  before  had,  .•md  ever 

since  hath,  inhabited,  dwelt  and  resided  in county, 

and  that  neither  the  sheriff  nor  the  coroner  of  said 

county,  did  at  any  time  on  or  before  the  day  of  the  impetration 
and  suint?  forth  the  .said  writ  of  the  plaintiff        return  a  u(/n  est 

on  a  summons  issued  in  said   county  against  him, 

the  said   nor  hath  the  sheriff',  nor  the  coroner  of 

said   county  since  the  day  of  the  impetration  and 

suing  forth  the  said  writ  of  the  plaintiff  returned  a   non  est 

on  a  summons  issued  in  said  county  against  him, 

the  said without  this,  that  he,  the  said 

on  the  day  of  the  impetration  of  the  said  writ  ns  aforesaid  did, 
or  at  any  time  before  or  since  hath,  or  now  doth  inhabit,  dwell 
and  reside  in  the    of    as  the  said 

»2  Drake  v.  Drake,  supra. 
T3  Scott    V.    Waller,    65    Til.     ISl 
(1872). 


abatkmi;nt  and  utiier  dilatory  pleas  205 

plaint ifT      by  his  said  writ  and  declaration  do      above  suppose, 

and  without  this  that  the  sherilT  or  the  i-orouer  of  said 

county  did  at  any  time  on  or  before  the  day  of  the  impe- 

tration  and  suing  forth  the  said  writ  as  aforesaid,  return  or 
hath  ever  sinee  tlie  said  day  of  the  impctration  of  the  said  writ 

returned  a  non  (st  on  a  sutninons  issued  in  said   

county  a^'ainst   him.   the  said    and   this,   he,  the 

Baid    is  ready   to  verify,  &c.,  and  the  said    .... 

• doth   further  allege  that  he  did  not  at  the 

impetration  of  said  writ  and  does  not  now.  caiTy  on  any  regular 
busin*-s.s.  nor  does  h  habitually  engage  in  any  avocation  or 
employment  in  the  said of 

(Verification  as  in  Section  561) 

(West  Virginia) 

(Commence  and  conelud.-  as  in  .Section  .176)  that  before  and 

at  the  eommencernent  of  the  said  action  of  the  said , 

§ho  the  said    was.  an«l   from  thence  hitherto  haa 

been,  and  still  is.  residing  in  the  county  of in  the 

Baid  state  of   West    Virjjinia.   and    not    in    the   said   county   of 

;     aiid    that    she    the   said    was   not 

found  or  served   with   proet»ss  in   the  said  action   in   tiie  said 

county  of but  was  found  and  served  with  process 

in  the  said  action  in  the  said  county  of   :     And 

this  she  is  ready  to  verify;  wherefore,  etc.^* 

(Verification  as  in  Section  HGl) 

678  Nonresidents,  several  defendants 

And  the  said one  of  the  defendants  in  the  above 

entitled  cause,  for  the  .sole  puri>ose  of  pleadinp  to  the  jurisdic- 
tion of  Hiiid  court,  comes  an<l  says  that  this  court  ou^'lit  not  to 
have  or  take  cognizance  of  the  siiid  action,  l)ecause  the  said  sup- 
posed cause  or  cau.s<'s  of  action,  and  each  and  everv'  one  of  them 

arose  in  the  county  of  in  said  state  of 

,  and  not  within  said  county  of   ,  and  that 

the  said  action  is  not  a  local  action;  and  that  both  he  and  his 

co-defendant at  the  time  said  suit  was  begun,  and 

at  all  times  sinee.  have  resided  in  said county,  and 

not  within  the  said  county  of  ;  that  process  was 

serse^l  on  the  said   in  said  county  of 

and  not  within  the  said  county  of and  was  served 

on  this  defendant  while  he  was  on  a  public  railroad  train  pass- 

T«  Nrtt<"rOpp?nh*imer  A  Co.  v.  El- 
fant,  fin  W.  Va.  99  CigO?). 


206  ANNOTATLI)    FOKMS   OF    I'LtLVDlNti   AND   VHACTWE 

ing  throuKli   tlif  said  county  of   ,  and  not  within 

thr  said  ••oiiiify  of wluTi'  lit-  rcsidrs ;  and  tlii:» 

the  said  defendant  is  n-ady  to  yrrify;  wh«'r«'f(>rt'.  vU-.'-^ 

(Verification  as  in  xctiun  ;>til; 

579  Railroad  company  (Illinois) 

(Coiiuiiciu'c  and  ronrludf  as  in  S'l-liun  .)7tij  that  thf  said  sup- 
posed causi's  of  action,  and  eaeh  of  th«'in,  if  any  such,  have 
accrued  to  the  said  phiinlitT  out  of  the  jurisdiction  of  this  court. 

that  is  to  say.  m  tlie  county  of  M,  in  the  stale  of , 

and  not  within  tiie  county  of  11,  or  elsewhere,  within  the  juris- 
diction of  this  court.  And  the  defendnnt  further  avers  that 
the  supposed  contract  or  contraets  upon  which  saiil  action  was 
l)rouK'ht.  were  not,  nor  were  any  of  them,  actually  made  in  said 
county  of  H,  and  the  same  were  not.  nor  any  of  them,  nor  any 
part  thereof,  made  speritically  payable  in  said  county  of  II. 
And  the  defendant  further  avers,  that  this  defemlant  is  a  cor- 
poration,  duly  estahlished   and   organized,  oi)eruting  a   line  of 

railroatl  from  M.  in  the  state  of to   

in  tlie  county  of  H,  in  the  state  of ;  that  its  presi- 
dent resides  in  the  city  of   in  the  state  of 

;  that  its  directors  and  other  ofticers  reside  at  ditTcrent 

points  in  said   and  the  state  of and 

none  of  such  tlirectors  or  other  ollici'rs  reside  in  said  II  county; 
that  the  principal  otTice  and  place  of  business  of  this  tlefendant 
at  the  tim(>  of  commencing  this  suit,  was  and  now  is,  in  the  said 

city  of in  the  state  of :  and  that  this 

defendant's  line  of  railroad   runs  through  or  into  the  counties 

of    ami    and    no   other   county    or 

counties  in  said  state  of :  that   this  defendant 

has  otiiccrs  and  agents  in  each  and  every  of  said  counties  where 
and  upon  whom  process  could  have  been  served  at  the  time  of 
the  commencement  of  this  suit  ;  that  this  defi-ndant  at  the  time 
of  the  conuncnccment  of  this  suit,  had  not.  and  now  has  no 
line  or  part  of  line  of  railroad,  in  saiil  II  c(uinty.  nor  any  office, 
otHicer,  director,  agent,  employee,  or  other  jierson  in  said  H 
county  ujion  whom  process  should  have  been,  or  could  now  be 
served;  that  this  defendant  has  not  been  served  with  process 
in  said  H  county;  and  that  the  prtpcipe  in  this  action  directs 
the  summons   herein   to  be  issued  to  the   sheriff  of  C   county 

and  such  summons  was  so  issued,  and  finally  served  on 

at  and  in  the  county  of  (',  he  being  then  and  there  an 

agent  of  this  defendant. 

And  this  the  defendant  is  ready  to  verify;  wherefore,  etc.'^^ 

(Verification  as  in  Section  561) 

T5  Sandusky    v.    Sidwell,    173    111.  ""  Xispel  v.  Western  Union  R.  Co., 

493    (1898).  64  111.  311    (1872). 


ABATLMtNT    AND    OTHER    DILATORY    PLEAS  207 

(Virginia)   Pica 

(r'oinnu'nco  and  coiu'lmlt'  as  in  Section  "jTB)  that  it  is  a  domes- 
tic railroail  corporation,  duly  incorporated  under  the  hiws  of 
ill.'  state  ol"  \  ir^inia,  ami  that  its  principal  olKce  is  not  located 

iu  the  city  of ,  Virginia,  l)Ut  is  located  in  the  city 

of  Virginia ;  that  its  chief  officer  does  not  reside 

in  the  city  of Virginia,  l>ut  resides  in  the  city  of 

\'irginia;  that  the  said  supposed  cause  of  the 

said  action  (if  such  there  be),  diil  not  nor  did  any  part  thereof 

arise  in  the  sjiid  city  of ,  hut  that  the  said  supposed 

eauHe  of  action,  if  any  such  «ause  there  be,  did  arise  in  the  state 

of or  in  the  county  of in  the  state 

of  Virginia  or  in  some  other  state  other  than  Virginia  ;  that  this 
dftendant    is    not    sued    with    any    other    person    or    persons 

resiibnt   iu  the  Mtid  eity  of    ;  and  that   plaintitf's 

cans*'  of  action,  if  any  he  has,  is  cogniwible  in  the 

iourt  of  the  city  of ,  in  the  state  of  Virginia,  and 

not  here  in  this  court.  And  this  the  defendiuit  is  ready  to 
verify. 

Wherefore,  etc. 

(Verification  as  in  Section  561) 

ReplUation 

And  the  snid  plaintiff,  by  his  attorney  comes  and  says  that 
notwithstanding  anything  by  the  wiid  defendants  in  their  said 
pleas  alleged,  this  court  ought  not  to  be  precluiled  from  taking 
further  cogni/iince  of  this  action,  bci-ause,  he  says,  a  part  of 
the  cause  of  attion  aforesaid  arose  anil  accrued  to  the  said  plain- 
titT  within  the  jurisdiction  of  this  court,  to  wit,  within  the  city 

of   aforesiiid.     And   this  the  said  plaintifl'  prays 

may  he  inquired  of  by  the  country. 

P    n- 

580  Tort  actions 

( 'oiMiiu-ncr  and  eonelude  as  in  Section  TiTfi'l  that  the  said  sup- 
posed causes  of  action  and  ea''h  and  every  one  of  them  (if  any 
such  have  nccnied  to  th»«  said  i)laintifTi  accrued  to  the  said 
plaintiff  out  of  the  jurisdiction  of  this  court,  that  is  to  say,  at 

the  county  of in  the  state  of ,  and 

not  within  the  county  of or  elsewhere  within  the 

jurisdiction  of  this  court:  that  the  said  supposed  injuries  upon 
which  said  cause  was  brought  were  not.  nor  were  any  of  them, 

actually  received  or  done  in  said  county  of ;  that 

this  defendant  is  a  corporation,  duly  established  and  organized, 

operating  a  coal  mine  in  said  county  of ;  that  its 

president  and  all  its  officers  reside  in   ,  in  said 


208  ANNOTATED   FORMS   OP   PLEADING    AND   PILVCTICE 

county  of ;  that  tlif  principal  office  and  place  of  busi- 
ness of  this  dt'tV'ndant  at  the  tijne  of  the  coniniencenient  of  this 
suit  was,  and  it  now  is  in  said  city  of ;  that  this  de- 
fendant's  property  is  situated,  and  its  business  is  wholly  trans- 
acted in  said  county  of and  in  no  other  county  or 

counties  in  the  said  st;ite  of ;    that  this  defendant 

has  oflieers  and   a^'ents  in  said  county  of    upon 

whom  process  could  have  been  served  jii  the  time  of  the  com- 
mencement of  this  suit;  that  this  defentlanl  at  the  time  of  the 
commencement  of  this  suit  had  not,  nor  has  it  now,  any  office, 
officer,    director,    apent,    em|)loyee    or    other    person    in    said 

county  u[)on  whom  process  could  then  have  been 

or  can  now  be  served,  but  defendant  furtlur  s^iys  that  one  of  its 
officers,  one ,  who  is  its  vicf-prcsidt-nt  and  secre- 
tary and  who  resides  in   in  said  county  of 

,  whiii'  casually  in  the  county  of in  the  pur- 
suit of  his  own  private  affairs  juul  not  enfjaged  in  any  business 
of  the  defendant,  nor  by  it  authorized  to  ;ic('ept  service  in  this 
or  any  other  suit  that  mi^dit  be  brou^;ht  against  it.  was  served 

in  said  county  of on  the day  of , 

19.  .,  by  ihc  sheriff  of  siiid  county ;  that  there  was  at  the  time  of 
the  commencement  of  this  suit,  and  now  is,  a  circuit  court  within 

and  for  said  county  of which  said  court  had  and 

now  has  jurisdiction  of  the  defendant,  ami  which  said  court 
might  lawfully  have  and  take  cogni/ance  of  the  said  suppos«'d 
causes  of  action  mentioned  in  said  plaintilT's  declaration;  and 
this  the  defendant  is  ready  to  verify.     Wherefore,  etc. 

(Verification) 

licplication 

And  now  comes  the  plaintiff  and  as  to  the  plea  of  tlie  said 
dcfendnjit  says  that  he.  the  plaintiff,  by  reason  of  anything  in 
said  plea  alleged  ought  not  to  be  barred  from  having  his  afore- 
said action  because  he  says  that  at  the  time  of  the  commence- 
ment of  this  suit  the  said  defendant's  property  was  not 
wholly  situated  or  its  business  wholly  transacted  in  the  said 
county  of   state  of  

And  because  the  plaintiff"  further  says  that  at  the  time  of  the 
commencement  of  this  suit  the  said  defendant  did  have  prop- 
erty situated  in  said  county  of    and   did  by  its 

officers,  agents  and  servants  transact  business  in  said  county  of 

and  did  then  have  an  officer,  agent  and  employee 

in  said  county  of   upon  whom  process  could  be 

legally  served,  to  wit,  one  M.     (Conclude  to  the  country) 

581  Witness'  privilege 

To  the  honorable,  the  judges  of  said  court. 

The  motion  of  ,  named  as  the  defendant  in  the 

above  entitled  cause,  and  appearing  specially  in  this  case  by 


ABATEMENT   AXD   OTHER   DILATORY    PLEAS  201) 

,  solely  for  the  purpose  of  this  motion  and  for  no 

otlitT  purpose  whatsoever,  and  reserving  her  riglit  to  exemption 
from  appearing  and  answering  this  case  and  all  otlier  nglits 
whalsoc-vtT,  respectfully  shows: 

1.  That  she  is  now  and  has  been  for  the  past   

yuars  a  resident  of  the  District  of  Columbia,  and  is  not  a  resi- 
dent of  the  state  of  Maryland. 

2.  That  on   ,  the   day  of   ,  19.  ., 

tht-re  was  on  trial  in  the  circuit  court  of county, 

in  the  state  of  -Maryland,  a  case  of  assumpsit,  in  which   

,  executor  ol  the  estate  of   ,  deceased,  was 

I)laintiff,  and  the  mud   was  defendant,  which  suit 

liad  been  instituted  in  this  honorable  court  and  had  been  trans- 
ferred hence  to    county,  and  thence  to  the  said 

circuit  court  of county. 

A.     That  on  .said day  of ,  19.  .,  said 

left    her   home   in   th.*    Oistrict   of  Columbia  and   went 

directly   therefrom    to   the   court    house   at    city, 

c(juaty,  Marylaml,  for  the  sole  purpcse  of  attend- 
ing at  that  <'0urt  as  party  defendant  and  testifying  as  a  witness 
at  the  trial  of  .Siiid  cause. 

4.  That  on   the    day  of   1!)..,  at  about 

o'clock,  p.  m.,  of  that  ilay  while  the  said  circuit  court 

of    county   was  actually   in  the   trial  of  the  said 

cause  and  while  she,  the  said   ,  was  in  the  actual 

presence  of  the  Siiid  court  as  such  party  defendant  and  witncs.s, 
and  while  sh«!  was  sitting  witliin  a  few  feet  of  her  attorneys 
who  Were  eni:age«l  in  the  conduct  on  her  behalf  of  the  trial  of 
Siiid  case,  and  waiting  to  be  called  and  swoni  to  testify  as  a 

witness  in  such  cause,  and  within   minutes  of  the 

time  when  she  actually  did  take  the  stand  and  testified  as  a 
witness  in  said  cause,  and  while  within  the  state  of  Maryland, 
and  in  attendance  upon  said  court  for  this  and  for  no  other 
purpose,  the  summons  in  this  case  was  illegally  served  upon 
lier.  the  s<iid  in  violation  of  her  rights  and  privi- 
leges JUS  a  party  defendant  and  a  witness  in  said  cause. 

5.  Said   was  present  in  the  .state  of  Maryland 

and  in  the  siiid  circuit  court,  at  the  time  and  in  the  place  where 
it  was  attempted  to  serve  said  summons  in  this  case  upon  her, 
for  the  purpose  of  testifying  in  the  .said  cause  then  and  there  on 
trial  and  for  no  other  purpose  whatsoever. 

6.  That  said is  partially  «leaf  and  that  she  did 

not  know  the  sh.*ritT  of  county,  and  that  because 

court  was  actually  in  session  in  the  room  where  said  summons 
was  so  illecrally  s«'rved  upon  her.  said  sherilT  adtlressed  her  in  a 
whisper  and  said  was  compelled  to  call  the  atten- 
tion of  her  coun.sel  to  the  fact  that  she  was  being  so  addressed; 
that  said  counsel  was  actively  engaged  in  connection  with  the 
trial  of  said  causo  and  having  answered  said  sheriff  that   the 


210  ANNOTATED    FORMS    OK    I'LEADlNCi    AND    lUACTlCE 

woman  he  was  addressing  was pave  no  more  atten- 
tion at  the  time  to  said  sheriff's  mission,  and  said 

did  not  Itnow  tliat  siie  hatl  bi'fu  so  illegally  served  with  a  sum- 
mons to  appear  in  this  court  at ,  as  a  party  defend- 
ant  in   a  suit   which   Siiid    was   in    this   manner 

endeavoring  to  institute  against  her  until  her  said  attorney 
returned  to  the  District  of  Columhia  late  in  the  afternoon  of 

,  the day  of ,  VJ.  .,  this  ilefendant 

having  left  sjiid  court   and   having  left    city  and 

the  state  of  .Maryland  before  the  jury  in  tiie  cause,  the  trial 
of  which  she  had  attended,  had  returned  to  the  court  room 
with  its  verdict. 

Wherefore,   the  premises  considered,   the  said    

asserts  tli;it  as  such  service  was  illegally  made  upon  her  in  vio- 
lation of  her  riirhts  and  privileges  as  a  witness,  and  as  a  party 
defendant,  attending  the  trial  of  the  case  above  mt^itioncil, 
the  same  is  null  and  void,  and  she  moves  this  honorable  court 
to  quash  said  summons  and  the  return  of  the  sheriff  thereon, 
and  to  order  the  plaintitT  to  pay  the  costs  in  this  case. 


Attorney  appearing  specially  as  above  set  forth.*^''^ 
(Verification  as  in  Section  501) 

Answer 

To  the  honorable  judges  of  said  court. 

This  answer  of ,  executor,  to  the  motion  of  the 

defendant, to  quash  the  summons  and  return 

in  this  case  respectfully  shows: 

1.  In  answer  to  the  first  paragraph  of  said  motion,  the  i)lain- 
tiff  admits  the  allegations  of  the  s;ime. 

2.  The  plaintitf  admits  the  allegations  of  the  second  para- 
graph of  the  same. 

3.  The  plaintiff  neither  admits  nor  denies  the  allegations  of 
the  third  paragraph  of  the  same,  except  that  the  plaintiff  denies 

that  said  defendant  was  at  said  trial  on    ,  I'J.  ., 

for  the  purpose  of  testifying  as  a  witness. 

4.  That  the  plaintiff  admits  that  on  the day  of 

19.  .,  at  about  o'clock,  p.  m.  of  that  day,  while  said 

court  of county  was  actually  in  the  trial  of  the  said 

cause  and  while  she  the  said ,  was  in  the  actual 

presence  of  said  court  as  party  defendant  the  said  summons  in 
this  case  was  sei*A'ed  on  her,  but  the  plaintiff  denies  all  the  other 
allegations  of  paragraph  four  and  especially  that  the  said 
was  attending  said  court  as  a  witness. 

5.  The   plaintiff   again   denies  the   allegations  of  the   fifth 

TTljong   V.   Hawken.    70   Atl.    190 

(Md.  lom. 


ABATEMENT   AND   OTHER   DILATORY    PLEAS  211 

paragraph  and  says  that  the  defendant  was  not  present  at  the 
said  trial  for  th*-  purpose  of  testifying  in  said  cause  and  for  no 
other  purpose  whatever. 

6.  The  plaintiff  denies  all  the  allegations  of  paragraph  six 
of  said  motion,  and  in  further  answer  to  said  paragraph  says 

that  on ,  ID . ,  the  sheriff  of 

county,   ^laryland,  served   the  summons  in   this 

case  on  the  dctVndant ;  that  when  said  siieriff  proceeded  to 
serve  said  suimiioriS  lie  approached  said  defendant  and  told  her 
who  he  was  and  read  to  her  in  full  the  contents  of  said  sum- 
mons; that  when  he  approached  her  to  serve  said  summons 
she  was  sitting  on  a  chair  and  he  came  up  behind  her  and  leanetl 
over  to  her  and  spoke  to  her  when  she  turned  partly  around  on 
her  chair,  and  tlu-n  that  the  relative  positions  thus  occupied  l>y 
Riiid  defendant  and  the  said  sheriff,  hrouglit  tlie  sheriff's  month 
near  to  the  ear  of  the  defendant  and  i)Ut  the  summons  as  nearly 
to  her  eyes  as  to  the  eyes  of  the  sheriff,  and  that  the  siieriff'  so 
held  the  summons  while  he  read  it  to  the  defendant,  and  that 
while  he  was  reading  it  to  her  she  was  also  looking  at  the  sum- 
mons; that  he  read  it  to  her  in  a  voice  considerably  above  a 
whisper  and  that  she  a[»peared  to  him  to  be  both  hearinir  what 
he  was  readinir  and  reading  the  summons  herself;  that  sh*;  did 
not  tell  him.  nor  in  any  other  way  indicate  to  him,  that  she  did 
not  hear  or  understand  what  he  was  readiu'^  but  on  the  (contrary, 
she  listened  attentively  until  he  had  fully  completed  reading  the 

summons,  when  she,  tlie  defendant,  called  one ,  her 

attorney,  and  the  said then  and  there  while  in  the 

[)resence  of  Siiid    took  the  summons  in    his  own 

hand  and  read  it  and  then  handed  it  back  to  tlu;  said  sheriff  of 

county  ;  that  in  about  a from  the  time 

he  so  served  said  summons  on  said 1!>.  .,  the  said 

went  over  to  where  the  said  sheriff"  was  sitting 

at  his  desk  in  the  court  room  and  said,  sheriff  let  me  see  that 
summons  again,  and  that  the  sheriff  again  gave  it  to  the  said 

wh')  a'^ain  looked  at  it,  and  that  the  said 

did  not  thereafter  at  any  time  ask  the  sheriff  to  see  said 

summons. 

7.  And  in  further  answer  to  said  motion  the  plaintiff  says, 

that  said  ca.se  on  trial  at  said  time  in  said  county 

court  was  brought  to  recover  the  identical  sum  of  money  sought 
to  be  recovered  in  the  present  case,  as  well  as  a  certain  other 

sum  sued  for  and  recovered  in  said  case  so  tried  in 

court ;  that  the  sum  soufiht  to  be  recovered  in  this  case  and 
which  was.  as  above  stated,  sought  to  be  recovered  in  said  trial 
in  said  case  tried  in county,  is  upon  a  paper  writ- 
ing, which  paper  writing  was  in  the  possession  of  the  defendant, 

and  which  she  refu.sed  at  the  time  said  suit  tried  in 

county  was  instituted  to  deliver  up  to  the  plaintiff  or  to  tell  the 
plaintiff  whether  said  paper  writing  was  a  simple  promissory 


212  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

note  or  a  writing  obligatory;  that  tho  plaintiff,  at  the  time  said 

suit  tried  in county  was  instituted,  did  not  know 

whether  said  paper  writing  was  under  seal  and  therefore  sued 
in  assumj)sit ;  tiiat  at  s<iiil  trial  when  s<iid  pai)er  writing  was 
prodiieed  it  was  iliseovertd  tiiat  it  was  under  wal  and  therefore 
the  recovery  of  siiiil  sum  due  on  said  |)ai)er  writing  in  saiil  trial 

in    the    county   court   aforesaiil    was   abandoned 

and  this  pending  suit  is  au  action  in  debt  to  recover  said  sum  of 
money;    that   this  suit   is  to   recover  the  same  sum  of   money 

sought  to  be  recovered  in  said  suit  in   county,  in 

which  the  defendant  dues  not  deny  that  siie  was  legally  sum- 
moned, and  as  the  suit  in county  had  to  be  aban- 
doned as  to  that  sum  of  money  now  sought  to  be  recovered  in 
this  suit  because  of  knowledge  in  the  defendant's  possession, 
which  knowledge  she  wrongfully  refused  to  impart  to  tlu;  plain- 
tifT  and  which  p.iper  writing  she  wron^'fully  withheUl  from  the 
plaintitT,  she  ou^dil  not  to  be  heard  to  «'omp!ain  in  the  premises, 
an<l  the  plaint ilT  asks  that  lier  s.iid  motion  be  dismissed. 
Respectfully  sulmiitted, 


Attorneys  for  plaintiff. 
State  of  Maryland, 
county,  to  wit  : 

I  hcreb\'  certify  that  on  this day  of 

10...  before  me.  the  subsei-jhcr,  a  notary  pul)lic  of  tlie  state  of 

Maryland,  in  and  for county,  per.sonally  appeared 

executor.    phiintitT   in    the   above   entitled   cause, 

and  made  oath  in  due  form  of  law  that  the  matters  and  facts 
set  fortli  in  the  aforegoing  writinj?  and  answer  are  true  as 
therein  set  forth  to  the  best  of  his  knowledge,  information  and 
belief. 

In  testimony  whereof  I  bavi'  iiereunto  set  my  hand  and  affixed 
my  notarial  seal  this day  of ,  19. . 


Notary  Public. 
Order 


Upon  the  application  of attorney  for 

,  named  as  defendant  in  the  above  entitled  cause,  it  is 

ordered  this day  of ,  19,  .,  by  the 

court  for   county,  that  the  motion  filed  in  said 

cause  by   to  quash  the  summons  therein  and  the 

return  thereon  be  and  the  same  is  hereby  set  down  for  hearing 

on  the day  of 19 .  . ,  at o  'clock 

.  .  m.  with  leave  to  both  parties  to  take  such  testimony  at  the 
hearing  as  they  may  desire ;  provided  that  a  copy  of  this  order 
he  served  on  the  said  or  his  attorney,  on  or  be- 
fore the day  of ,  19. , 


ABATEMENT  AND  OTHER   DILATORY    PLEAS  213 

ABATEMENT  OF  THE  WRIT 

582  Nature  of  plea 

A  plea  in  abatement  of  the  writ  is  meritorious,  and  is  not 
regarded  with  the  same  strictness  as  is  a  plea  to  the  jurisdic- 
tion of  the  court."* 


583  Requisites  of  plea  generally 

A  pha  ill  abatement  must  give  a  better  writ  or  declaration."^^ 
But  this  nM|uirtMii»'nt  has  no  application  to  a  plea  which  shows 
a  condition  of  facts  urithT  which  no  court  in  the  state  has 
jurisdiction,*"  A  plea  in  abatement  to  tlie  writ  liy  a  corpora- 
tion must  be  signed  by  its  attorney.*^ 

584  False  return,  waiver,  plea,  practice 

At  common  law  the  remedy  for  a  false  return  is  by  an  action 
a(;ainst  the  officer  who  made  the  return."-  In  Illinois  the  return 
of  an  ofl'.cer.  on  oriuinal  proce.ss,  is  merely  i/rima  facie  evidence 
of  matters  therein  stated,  and  it  nmy  be  put  in  issue,  before 
judgment,  by  plea  in  abatement,"  A  default  which  has  been 
entered  upon  a  tal.se  return  nuiy  be  ,set  aside  on  motion  promptly 
made.**  After  jud^rment,  except  in  ca.ses  of  default,  a  false 
return  is  not  impea<'hable.**  The  defen.se  of  false  return  of 
process  is  waivable  by  a  domestic  or  a  foreiirn  corporation;*^ 
and  if  the  defen.se  is  sought  to  be  interpo.sed,  it  should  be  done 
by  plea  in  abatenu*nt,  and  not  by  motion,*^ 

585  False  return,  plea,  requisites 

I'mier  the  present  statute  of  Illinois,  a  plea  in  abatement 
which  raises  an  issue  on  the  right  to  serve  any  other  person  than 

"numphr.-v    v.    Phillips,    r,!    111.  « Sihert     v.    Thorp,     77     III.     4.3, 

13.^;  (•ami)»K>li  v.  IIikIhoii,  106  Mich.  44   (1875);  Ryan  v.  Lander,  89  IlL 

523.  527    (l**'.*."));    Italian  Swi.ss  Ajj-  554   (1878). 

riculturul   C.lony   v.    iVa-se.    11»4    III.  «3  Sibert    v.    Thor{..    77    III.    40; 

9S    mo   (1901).'  Waterbury   National    Bank   v.   Reed, 

TsCbicauo    &     Pacific    R.    Co.    v.  231111.240,250(1907). 

MunRpr.    78    III.    300.    301     (1875);  «*  Waterbury    National    Bank    v. 

Locomotive    P'irtMn.n    v.   Cramer,    60  Reed,  231  111.  251. 

111.  App.  L'12;  anirtncl  104  111.  9.  "^  Watertmry    National    Bank    v, 

foDeatri.k  v.  State  Life  Ins.  Co.,  Reed,  231  111.  2.50. 

107   Va.   611.  612.  *«  Mineral   Point   R.   Co,   v.   Keep, 

•>  Locomotive  Firemen  v.  Cramer.  22  III.    16. 

164  111.  14.  *^  Mineral   Point  R.  Co.  v.   Keep, 


^14  ANNOTATED    FORMS   (jF    PLEADING    AND    I'KACTICE 

tlu'  president  of  the  defendant  eompany,  slioiild  merely  con- 
tradict, by  proper  averments,  the  return  that  the  president 
could  not  he  found  in  the  county  at  the  time  of  serviee.^"*  Prior 
to  this  statute,  it  was  necessary  to  sliow  that  the  president  of 
the  company  did  not  reside  in  the  county,  or  that  he  was 
absent. 8"  A  plea  in  abatement  which  attempts  to  raise  the 
question  of  service  upon  a  eorponitioii  is  defective  if  the  ph-a 
merely  states  that  the  president  was  in  the  county  at  the  time 
the  pretended  service  was  nuide  upon  another  otlicer  of  tlie 
corporation  without  showin«?  where  the  sherilT  could  have  found 
the  president  in  the  county.""  The  averment  in  a  plea  of  abate- 
ment to  the  writ  by  a  corporation  that  summons  was  not  served 
upon  it.  is  material. °' 

586  False  return,  plea,  form 

Now  comes   attorney  in   fact   for  the    

and  limiting  his  appearance  for  the  sole  purpose  of  filing  this 
plea  to  the  writ  or  summons  herein  and  return  of  the  sheritT 
thereon,  and  for  no  other  purpose  whatever,  and  defends,  when, 
etc.,  and  says  that  the  writ  or  summons  herein  was  never  served 

on  the ;  and  further  that  the  return  on  the  back  of 

said  writ  or  summons  of  the  pretended  and  alleged  service  pur- 
porting to  have  been  made  on  the  siiid   ,  on  the 

tlay  of ,  in.  .,  is  wholly  untrue  and 

false;  that  the  siiid    upon   whom   such   pretended 

and  alleged  service  of  said  writ  or  summons  was  had  was  not 

at  the  time  of  said  alleged  and  pretended  service  on  the 

Jay  of v.).  .,  and  has  not  since  that  time  been 

and  is  not  now  the  agent  of  the  said  for  the  pur- 
pose of  accepting  service  of  summons  or  for  any  other  purpo.se 
as  is  set  forth  in  the  return  of  the  sheriff  on  the  back  of  said 

writ  or  summons;  and  this  the  said   as  attorney 

in  fact  for  said  is  ready  to  verify;  wherefore  he 

prays  judgment  of  the  said  writ  or  summons  and  the  return 
thereon  bv  the  sheritf.  and  that  the  same  may  be  quashed,  etc. 


Attorney  in  fact  for  the company. 

22    111.    17;    Union    National    Bank  R.   Co.   v.   Dorsey,   47   HI.   288,   289 

V.   First   National   Bank.   90   111.   5G  (1868). 

(1878).  y"  Chicago   Sectional   Electric    Un- 
as Chicago   Sectional  Electric   Un-  derorround    Co.    v.    Congdon    Brake 

derground    Co.    v.    Congdon    Brake  Shoe  Mfg.  Co..  Ill  111.  314,  315. 

Shoe    Mfg.    Co.,    111.    111.    309.    314  ^^i  Locomotive  Firemen  v.  Cramer, 

(1884);  See.  8,  Practice  act  1907.  164  111.    14. 
89  St.  Louis,  Alton  &  Terre  Haute 


ABATEMENT   AND   OTllElt    UlLAiUKY    I'LEAS  215 

(Venue) 

,  being  first  duly  sworn  upon  his  oath,  deposes 

and  says  that  he  is  the  duly  authorized  attorney  in  fact  of  the 

company  for  the  purpose  of  filing  the  plea  hereto 

annexed;  that  as  such  attorney  he  is  authorized  and  empow- 
ered to  enter  and  file  the  same ;  and  that  the  plea  hereto  annexed 
is  true  in  substance  and  in  fact. 


Subscribed,  etc. 


587  Misjoinder  and  nonjoinder  of  parties 

The  misjoinder  or  mjnjoiiKler  oi'  proi)er  plaintiflfs  in  ex  con- 
tractu actions  may  be  ph-aded  in  al)atement.  or  the  objection 
may  be  raised  under  the  gt-mral  issue."-  The  nonjoinder  of 
publiely  known  partners  is  pleadabU'  in  abatement,  unless  the 
nonjoinder  appears  on  the  face  of  the  declaration."^*  The  non- 
joinder of  dormant  or  secret  partners  cannot  be  pleaded  in 
«l)atement  where  the  plaintitT  has  no  notice  of  tiieir  existence.^* 
In  tx  delicto  actions  brought  for  the  recovery  of  damages  as 
distinguished  from  the  recovery  of  specific  property,  the  non- 
joinder of  one  or  more  joint  owners  of  the  jiroperty  lost  or 
destroyed  can  ho  taken  advantage  of  only  by  plea  in  abatement. "^ 
Hut  tlio  nonjoimler  or  misjoinder  of  parties  defendant  is  not 
available  as  matter  of  abatement  in  actions  tx  dflicto,  nor  can 
advantage  be  taken  in  any  other  way,  except  where  the  liability 
of  a  defendant  ^tows  out  of  ownersiiip  of  real  estate  held 
jointly  or  in  common  with  others,  and  where  the  nature  of  the 
wrong  is  such  as  that  it  cannot  be  committed  by  more  than  one 
])erson  and  two  or  more  are  charged  with  the  offense.®'* 

588  Misnomer,  waiver,  practice 

The  misnomer  of  a  plaintitT  or  of  a  defendant  who  is  the 
real  party  in  interest  and  the  person  intended  to  be  .sued,  whether 
he  be  an  individual  or  a  corporation,  must  be  pleaded  in  abate- 
ment:   the  defense  is  waived   if  not   so  pleaded.®^     This  rule 

•JSnell    V     DeLand     4.3    111.    .323,  (18.56) ;  Sinsheimer  v.  Skinner  Mfg. 

32.5,  326    nsr,7)-    S<>.'.   .53,    Practice  Co.,   165  III.    116.   123    (1897). 

act    (1911    Hur.l's   Stat.,   p.    1775);  "  Goggin    v.    O'Donnell,    62    111. 

Puschel     V.     Hoover,     16.     111.     340  67. 

(18.54)       overnileil:      fumminsrs     v.  os  Johnson    v.    Richardson.    1«    111. 

People.    .50    111.     132,     134     f  1S69)  ;  302,  .304    (18.55). 

Brooks    V.    Mclntvre,    4    Mich.    316,  o«  Tandrup    v.    Sampsell,    234   111. 

318     (1856).           '  526,    530    (1908). 

•3  Page    V    Brant,    18    111.   37.   38  »7  Hermann  v.  Br.tlcr.  59  111.  225, 


21G  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

applies  to  adults  and  infants,  and  also  to  ex  delicto  actions.'" 
The  want  of  capacity  to  sue  is  not  the  same  as  misnomer,  it  is 
not  waived  by  a  iailurt*  to  plcaii  in  abatement,  and  it  may  be 
shown  under  a  plea  of  nul  tiil  corporation.""  A  mistake  in  the 
plaintiff's  or  the  defendant's  Christian  name  must  also  be 
pleaded  in  abatement.'""^  A  misnomer  of  the  plaintitT  cannot 
be  taken  advantapre  of  by  niotion.^'^* 

589  Misnomer,  plea,  requisites 

A  i)lea  in  abatement  for  misnomer  must  not  use  the  word 
"defendant"  or  "siiid,"  or  any  otiier  word  or  words  that  wouUl 
amount  to  an  admission  that  the  person  pleading  is  the  person 

who  is  l)eint?  sued.^"- 

590  Misnomer,  plea,  form  (District  of  Columbia) 

Now  comes  the  said ,  by  liis  attorneys , 

against  whom  the  siiid   hath  filed   the  dechiration 

by  tlie  name  of    and  says  that   he  is  named  and 

called  by  the  name  of and  l)y  that  naiiie  and  sur- 
name hath  always  been  hitherto  called  and  known;  without  this, 

that  he,  the  said   now  is,  or  ever  was,  named  or 

called,  or  known  by  the  name  of   a-s  in  the  said 

declaration  supposed.     And  this  he.  the  said   is 

ready  to  verify.  Wiierefore,  he  prays  judgment  of  the  siiid 
declaration  and  that  the  same  may  be  (juasiied. 

By   

his  attorney. 

(Venue) 

,  being  duly  swoni  upon  oath  deposes  and  says 

that  he  is  the  attorney  for sued  as ., 

and  that  the  plea  annexed  hereto  is  true  in  substance  and  in 

fact. 


Subscribed,  etc. 

227   (1871);  African  M.  E.  CTiurch  09  Marsh  v.  Astoria  Lodge,  27  111. 

V.    McGnuler,    73    111.    516     (1874);  421,425   (1862). 

Pennsylvania  Co.  v.   Sloan,   125  111.  loo  Salisbury    v.    Gillett.    2    Scam. 

72.  77   (1888);   People  v.  O'Connor.  290.   291    (1840);    Davis   v.   Taylor, 

239   111.  272,  277   (1909).  41  111.  405,  408   (1866; 

98  Pond  V.  Ennis.  69  111.  341,  344  i"i  Watson    v.    Watson,    47    Mich. 

(1873);    Guinard   v.    Heysinger,    15  427,429  (1882). 

111.  288    289   (1853);  First  National  102  Feasler    v.    Schriever,    68    III. 

Bank    v.    Jaggers,    31    Md.    38,    47  322,  323  (1873). 
(1869);   Chicago  &  Alton  R.  Co.  v. 
Heinrich,  157  111.  388,  393  (1895). 


ABATEMENT   AND   OTHEK    DILATORY    PLEAS  217 

591  Misnomer,  replication 

It  is  appropriate  to  reply  to  a  plea  of  misnomer  that  the 
party  is  known  as  well  by  one  name  as  by  another,  even  where 
tlie  Christian  or  given  name  is  made  up  of  initials  alone.^"^ 

592  Nul  tiel  corporation,  defendant,  practice 

A  plea  denying  that  the  plaintiff  is  now  or  ever  has  been  a 
corporation  is  a  plea  in  bar,  as  the  sustaining  of  such  a  plea 
defeats  the  action;  but  a  plea  denying  that  the  defendant  is 
now  or  ever  has  been  a  corporation  is  a  plea  in  abatement, 
because  it  must  give  the  plaintitf  a  better  writ  by  pointing  out 
to  liim  the  defendant's  true  character. ^'^^  A  plea  in  abatement 
is  therefore  appropriate  to  raise  the  question  whether  the  defend- 
ant is  a  corporation.'^''^  A  pk'a  mil  tiil  eorporation  defendant 
must  be  pleaded  separately  and  before  pleading  to  the  merits. 
Such  a  i)lea  eannot  be  pleaded  with  the  general  issue.'"^"  This 
class  of  pleas  must  give  the  plaintitV  a  better  writ  by  pointing 
out  to  him  its  true  character.'"^ 

593  Variance,  motion,  nature 

A  motion  to  dismi.ss  the  suit  on  account  of  variance  between 
the  writ  and  the  declaration  is  in  the  nature  of  a  plea  in  abate- 
ment,'"* and  is  appropriate  if  the  defect  appears  on  the  face 
of  the  papers.'"" 

594  Variance,  plea,  form 

The  defendant,  by  it.s  attorneys,  comes  and  craves  oyer  of  the 
writ  in  tliis  eause,  and  it  is  reail  to  liiiii  in  these  words,  to  wit: 
(Set  forth  writ)  ;  which  being  read  and  heard,  the  said  defend- 
ant prays  judgment  of  the  said  writ  and  declaration,  and  says 
that  there  is  a  variance  between  the  said  writ  and  the  declara- 
tion, herein  in  this  particular,  that  is  to  say,  in  the  said  writ,  it  is 
said  that  the  sheriff  of county  is  commanded  to  sum- 
mon    ,  a  director  of   of  Vir^'inia,  to 

answer    and    ,  partners,  trading  as 

108  Lucas    V.    Farrinjjton,    21    111.  io7  Keokuk  &  Hamilton  Bridge  Co. 

31.   32    (IS.'iS).  V.   Wetzel,  supra. 

104  Keokuk  &  Hamilton  Bridge  Co.  »o8  Schoonhoven  v.  Gott,  20  111. 
V.  Wetzel.  22S  111.  25.-^.  2.').T  (1907).  48. 

105  Ameri.an  Kxi.ress  Co.  v.  Hag-  io»  Windett  v.  HamUton,  52  lU. 
gard.  .37   111.  41',.-.  47(1    (lHfi.=3).  180,   183   (1869). 

io«  Keokuk  &  Hamilton  Bridge  Co. 
V.  Wetzel,  228  HI.  2.5.5. 


» »  for  tho  Wuetlt  of ,..,.,  of  A  plt»«  of  trxih 

pMtt  CO)  thir  ca>v.  m  {ussuiuivsit   li.uuai'i'j*   vlolUr*. 

miui  ui  tho  srtivl  vitvlttriitum  ton  v>»  stiid  writ,  it  is  I'Oiu- 

'.   Oio   ^'i    »         ■•■,  a  ivr|H>r«tion.  the 

Ml  iMtMitioius)  in  «iMui  il'  i,  tins  not  kopt  with 

Inu      -         .  -luu 

of » itoiUrs.      I  -  thor\«  is  a  luaiuti^st 

\*»n{MU*t»  bftwrH«»«  •'•  •  ^^•''  -    .  siiul  vitvlttrittiou.  in 

tho  |v4rtiouKir  .  Ijint  prn^vs  juairniont  of 

tho    writ    iiiivl    vUv.UM'.u'U  aotv^a    :.    atul  th»t    tho    Siimo    Ih» 

OvHNT  OR  IHX'l-AKATlON 

^i>^  Law  Aiui  nil*s  governing 

tjii;  -  I'v   vltvlara- 

tuxii.'^* 

596  AbAtomout  by  death,  uou  survmng  acUou.  plea 

Aiul administratrix  of  tho  i"«tato  of lU^ 

o\\isn\i.  vHMiuvs  and  dofoiuK  oto..  whou.  etc..  and  pravs  jndjjiuont 
of  tho  writ        •    •     ■  .     '   '  ^        '     .   V .        •  sub- 

s*\luont  to  -        s  ..'.ion 

montionod.  to  wu.  ou  UK  ..  luo  said 

dopartod  this  Ufo  at in  siiid  oounty  and  state; 

and       ho  further  says  that  tho  a^OJ^^^  eaus«^  of  action  in  said 
dtvlaratiiui  uiontionovl  do  nv>t  survive  tho  dt»ath  of  the  said  . . . . 

;  and  tliis  the  said  administratri!.  is  rt»ady  to  verify ; 

wherx^fort*       he  prays  ;  '      said  writ  and  doolara- 

tion  therxvn  fouiidt\l  a:  -         may  W  viua^shod.  oto.*'* 


AdministnUri\  of  the  estate  of ,  dovoasoii. 

y^Verit\oation> 

W7  Abatement  by  statute,  petition 

Tho  defendants, and exivutors  of 

dt\*oast\i,  move  the  <«ourt  that  the  aKne  ontitKnl 

suit  be  doolarovl  to  K»  abatoil  and  disniisstni.  and  that  jud^uent 
be  ontetwl  for  defendants  for  tho  follow  invr  rt  asons 

»W!j!M^itV    Jt    Marsh    v.    NortWrn  ui  Hske   v.    Kent    «.' r\ ■•.  t    Jiul^. 

Xe^k    Mut.    >^rv«    Ass^i.    70    a    E.       99  Mivh.   iU5,  217    O^^i^^ 
4>i     Va.  1911).  »»sJi>uos  V.  Barmui.  217  111.  3S1. 


■  ■"J! 


i*- 

A 

4i 

A 

;it 

.,  .,  .. J 

.^rt, 

.  ...  ar 

of  ihtt 

A 

/, 

n  Uif'ir 

fAVor'»« 

Miorwry 

Ym  ■.• 

OffUr 

t 

.  thm 

'l*v  of VA.  ,,  that  th  ,n  to  nimUi  tt*-.  jfrant^d, 

;>  and  M  ^uir*^/,  ht^^lfA  and  flmrntrnfrfi,  with 

*  ■•  .  '4, 


Bankmptcy,  waiver,  pleadin^j 

Th**  rl#rf#TUM!  of  ^/ank^Jpl/:y  jn  v  r.^vahk,"*  and  if  a  diacharffe 
ir.   '      '  -  if/t/'y  i*  *         '  '  ly 

)•  ■'•     A  {'■  .      .  .    ,re 

of  H  filt-a  in  abati-rmrnt  and  iinmt  cjfwAutU!  aa  auch,"'* 

699  Bankruptcy,  motion 

SffW  *'f,m"n  th**  a^K/v»?  nam<<rd  d^-f'-ndant   .  .  aw] 

f  ^'r  an  orfi*rr  uXayinn  i\ic,  prnt-jif.finifpi  in  the 

'Ihin  fnotiofi  14  htuM-rl  fjfKin  an  az-t  of  ('.oTH^*-m,  f-.TitltUA  **An 

fif'i  ht  «-nt;)f,!i4h  a  uniform  ny%t"tfi  of  K-  -  i--    -  •       'L  - ,  ;jrhont  the 
I  f,jf<'l    Sf<ii.^4,"  *-UHctt'il  .July  Int.   1-  an/j  aluo 

ijf;'>ri  a  ' '  '  ■'  '5?  the 

aUvf  n;.  rna/Je 

upon  fh»- riay  of ,  Jfr    ,  m  a  matter 

p'-fi'linif   in  the  rJi^trir-t  fourt  of  thr-  T.'riit/'M  StateM  for  the 

,    diatrirrt  of   Miehiifan  division    in    hank- 

tt*  fi^tfndorf  Atlf  (>,.   V.   PW/I,  n'.V.j^rn  v,   Firirt  .Vational   f'.ank, 

1)4   Mf     «h7    Mfill).  ^r,  III    42.*;. 

"•T.if.«r    V.    fir/novan,    l.V»    Mi<'h.  »"« Mii/'atro    4;    N'ort.hw*«t.<?m    fty, 

«:;,  ft.',H  r  19<ift>,  Co.  r  J^nkinii,  10?.  Ill,  ,W3. 


220  ANNOTATED    FORMS   OF    PLELVDING    AND   PRACTICE 

ruptcy,  entitled  "In  the  matter  of  the  petition  of 

to  he  adjiulgt'il  a  bankrupt, "  hni-to  annexi-ti ;  and  upon  the 
tiles  and  n-eords  in  this  cause. 

Dated,  ete. 

(Attach  certified  copy  of  order  of  adjudication  and  reference; 
also  notice  of  the  motion  and  atVuiavil  of  service.) 

600  Bankruptcy,  petition 

To  the  circuit  court  for  the  county  of 

Your  petitioner,   ivspoft fully  represents: 

1.  That  he  is  the  defendant  in  the  above  entitled  cause. 

2.  That  on  the day  of ,  11> .  . ,  he  filed  a 

petition  in  bankruptcy  in  the  I'nited  States  district  court,  for  the 

district  of  Michi^'an,   division,  and 

on  the   day  of  ,  19.  .,  he  was  adjudicated 

bankrupt  by  said  court. 

.'i.  That  the  claim  set  up  by  the  plaintitT  in  this  cause,  is  one 
from  which  he  is  entitled  to  a  release  in  bankruptcy  if  a  final  dis- 
charge be  granted  him  i)y  the  L'nilcd  States  district  court. 

lie  therefore  prays  that  an  order  be  entered  by  this  court 
staying  all  proceeilings  in  this  cause  until  the  final  determination 
of  the  bankruptcy  proceedings  in  said  United  States  district 
court. 

This  motion  is  based  on  the  files  and  records  of  this  court, 
and  of  the  {ifitidavit  of   hereto  attached. 


By 

his  attorney. 

(Venue) 

, ,  being  duly  sworn,  says  that  he  is  attorney  for 

the  defendant  in  the  above  entitled  cause,  that  on  the  ....  day 

of ,  19.  ..  he  filed  for  said  defendant,  a  petition 

in  bankruptcy  in  the  United  States  district  court  for  the 

district    of   Michigan division.      That 

among  the  claims  listed  i»y  said  bankrupt,  for  which  he  asked 
a  discharge  in  bankruptcy,  was  the  claim  of  the  plaintiff  in  this 
cause.  That  on  tlie day  of ,  19-  •,  the  said  de- 
fendant was  adjudicated  a  bankrupt. 


Subscribed,  etc. 

Order 

In  the  above  cause  it  appearing  from  the  petition  filed  by  said 
defendant  that  he  has  filed   a  petition  in  bankruptcy  in  the 

United  States  district  court   for  the    district  of 

Michigan division,   and  that  the   claim   of  the 

said  plaintili  in  this  suit  is  listed  in  the  claims  from  which  the 


ABATEMENT    AXD   OTHER   DILATORY   PLEAS  221 

said  defendant   asks  a  discharge  in  bankruptcy,  and  the  said 
proceedings   in   bankruptcy   being  still    pending; 

It  is  therefore  ordered  that  all  proceedings  in  this  cause  be 
and  they  are  hereby  stayed  until  the  tinal  deterniination  of  the 
bankruptcy  proceedings  in  the  said  L'nitod  States  district  court. 


Circuit  Judge. 
Notice 

To  ,  attorney  for  plaintiff. 

Please  take  notice  that  the  said  defendant  will,  on  the  trial  of 
this  cau.se  insist  upon  and  give  in  evidence,  under  the  plea  of  the 
general  issue  by  him  heretofore  pleaded  in  this  cause,  that  after 
the  said  plea  was  by  him  pleaded,  and  before  this  day,  to  wit, 

on  the    day  of   ,  19.  .,  a  petition  in 

bankruptcy  was  tiled  in  the  United  States  district  court  for  the 

district  of  Michigan,  division,  by 

the  said  defendant,  and  that  the  claim  of  the  plaintiff  in  this 
ca.se,  was  one  of  the  debts  li.sted  by  the  said  defendant  in  said 
petition,  and  from  which  he  asked  a  di.scharge  in  bankruptcy. 

That  on  the  day  of ,  If).  .,  a  final 

order  was  entered  in  said  bankruptcy  proceeding,  discharging 
tlie  said  petitioner,  the  defendant  in  this  case,  from  all  debts 
provabh'  under  the  Bankruptcy  acts,  including  the  claim  of  the 
l)laiutitT  in  this  suit:  all  of  which  the  said  defendant  will  give 
in  evidence  on  the  trial  of  this  cause,  as  aforesaid,  and  insist 
up(tn  in  his  defeiLse ;  wherefore  the  saitl  plaintiff  ought  not 
further  to  maintain  his  said  action  against  the  said  defendant. 

Dated,  etc. 

601  Bankruptcy,  plea 

And  for  a  further  plea  in  this  behalf,  the  defendant  says 
that  after  making  the  several  supposed  promi.ses  in  the  said 
amended   declaration  and  each   count   thereof  mentioned,   and 

before  the  commencement  of  this  suit,  to  wit,  on  the 

day  of ,  19.  •,  the  district  court  of  the  United  States 

of  America  for  the district  of , 

granted  to  the  defendant  a  certain  discharge  in  these  words 
and  figures,  to  wit :    (Insert  certified  copy  of  discharge.) 

And  the  defendant  further  says  that  the  said  supposed  causes 
of  action  in  said  declaration  mentioned  are  in  respect  of  debts 
and  claims,  and  each  of  them  is  in  respect  of  a  debt  and  claim 
by  the  said  a<*t  of  Congress  made  provable  against  the  estate  of 

the  defendant,  which  existed  on  the  siiid day  of  .... 

19.  .,  and  that  the  said  supposed  causes  of  action 

are  not.  nor  is  any  one  of  them  in  respect  of  any  .such  debts 
or  debt,  as  are  or  is  by  the  said  act  excepted  from  the  operation 
of  a  discharge  in  bankruptcy. 

Wherefore,  etc. 


222  ANNOTATED   FORMS   OP   PLE.VDINO    AND   PRACTICE 

602  Bankruptcy;  plea  puis  darrein  continuance 

Aiul  now  this  day,  to  wit,  the day  of , 

19..,  until  wliii'li  tlay  this  saitl  cause  was  continued,  conies 
the  deleiKhint,  hy  his  attornt-y,  hy  leave  of  court  liret  had  and 
ohtiiined  in  this  hehalf,  and  for  a  further  pha  herein  says:  that 
tin-  plaintitVs  ou^lit  not  further  to  have  or  maintain  their  afore- 
Biiid   action   ajj::iinst    him,   tlie   defemlant,    heeau.se   he   says   that 

after  the  last  ph'adin^'  in  tliis  cause,  to  wit,  on  tin* day 

of ,  11).  .,  and  hefore  this  day,  to  wit,  on  the 

day  of ,  II).  .,  this  drfendant  was,  and 

had  been  continuously  during  the  six  months  next  immediately 

preceding'  .said day  of ,  ID.  .,  a  natural 

person  and  an  actual  resident  of  the  county  of   , 

and  state  of in  the district  of 

, division  thertof ;  that  on  tlw  h.st  day  and 

date  mentionetl  aforesaid  this  defendant  was,  nmler  tlu*  acts  of 
Congress  of  181)8  relating  to  hankruptcy  and  as  amended  l'«i>ru- 
ary  5,  VJO'.i,  duly  adjudicated  a  voluntary  bankrupt  by 
and  in  the  district  c«)urt  of  the  I'nitetl  States  of  America  for 

the    district   of    ,    

division ;  that  afterwards,  to  wit,  on  the <lay  of 

,  ID.  .,  the  said  district  court  of  the  I'nited  States 

of  America  for  the    district  of    , 

division  thereof,  granted  to  this  defendant  a  cer- 
tain discharge  in  these  words  and  figures,  to  wit:  (Insert  copy 
of  discharge.) 

And  the  defendant  further  says  that  tiu>  several  supposed 
promises,  undertakinu's  and  cau.ses  of  aetion  in  said  declaration 
mentioned  are  in  respt'ct  of  ilebts  and  claims,  and  each  of  tlu'ui 
is  in  resiiect  of  a  ilcht  and  claim  by  the  said  acts  of  Congress 
as  amended  made  provable  against  the  estate  of  this  defendant, 

and  which  existed  on  the  said  day  of 

ID..,  and  the  said  supposed  causes  of  action  are  not,  nor 
are  any,  nor  is  any  one  or  either  of  them  in  respect  of  any  sueh 
debt  or  debts  as  are  or  is  by  tlie  sai<l  aets  exempt  from  the  opera- 
tions of  and  discharge  in  bankruptcy.     Wherefore,  etc. 

(Verification) 

Eeplicotion 

Prccludi  non,  because  they  say  that  the  debt  upon  which  the 
cause  of  action  in  said  declaration  mentioned  is  based  was 
created  by  fraud,  misrepresentation  and  false  pretenses  of  the 

defendant  in  that  the  defendant  did,  on  or  about  tlie 

day  of ,  ID.  .,  falsely  and  fraudulently  repre- 
sent in  writing  to  the  plaintitVs  that  he  was  the  o^\^ler  of.  and  had 

in  his  possession  on  his  farm  in township.  .... 

county, ,  (Describe  property)  and  that  they 

were  of  sufficient  value  to  secure  an  indebtedness  of  $.  . .  .  ;  that 


ABATEMENT    AND   OTHER    DIL.VTOKY    PLEAS  223 

the  plaintifTs  then  and  there,  relying  upon  his  said  represen- 
tations, {^avt*  him  credit  for  said  sum  and  then  and  there  released 
and  parted  with  the  lien  of  a  certain  chattel  mortgage  securing 

the  payment  to  the  plaintiffs  of  $ ,  and  took  for  security 

for  the  debt  herein  sued  upon  a  certain  other  chattel  mortgage 
ujjon  the  same  (Describe  property;  above  described;  that  the 
saiil  representations  so  made  in  writing  as  aforesaid  by  the 
defendant  were  false  and  fraudulent  and  then  and  there  known 
to  the  defendant  to  be  so,  and  at  that  time  Siiid  defendant  was 
not  the  owner  of  (Deseril)e  property),  or  any  part  thereof, 
and  did  not  poss«'SS  the  same  at  the  place  aforesaid;  that  the 
defendant,  well  knowing  that  his  siiid  representations  were 
false  and  fraudulent,  executed  then  and  there  a  certain  chat- 
tel mortgage  conveying  to  the  plaintilTs  the  said  supposed  (De- 
flcribe  property)  aforesaid,  for  the  purpose  of  securing  the  pay- 
ment of  a  certain  note  by  him  then  and  th»'re  executed,  in  the 

sum  of  $ ,  and   he  then  aiul  there  delivered  sjiid  clialtel 

morfgag.-  and  wiid  note  to  these  plaintiffs  an«l  thereby  obtained 

fn)m  them  a  credit  of  the  sum  of  $ ,  and  also  procured 

the  releas*'  by  the  plaintitTs  of  a  <'ertain  other  chattel  mortgage 
on   certain   cattle   securing    to    the    plaintilTs   the    payment    of 

$ ;  and  that  the  defendant  thi'U  and  there,  at  the  time 

of  making  said  false  and  framltdent  representations  and 
executing  .siiid  chattel  mortgage  and  note,  well  knew  that  he 
did  not  own  (Describe  property),  or  any  part  thereof,  and  he 
nuiile  said  fals«'  ami  fraudulent  representations  then  and  there 
with  the  intent  to  <lefraud  the  plaintitTs  of  the  said  debt  and  sum 

of  $ with  interest  thereon,  which  .siiid  debt  is  the  same 

debt  declared  upon  in  the  declaration  herein;  and  this,  etc. 

Hcjoinder 

And  the  defendant  as  to  the  replication  of  the  plaintifTs  to 
the  special  plea  of  the  defendant  says  that  the  plaintifTs  ou<.'ht 
not  by  reason  of  anything  by  them  in  that  replication  alh'j:ed. 
to  further  have  or  nuiintain  their  aforesaid  action  thereof 
against  him,  the  defendant,  because  he  sjiys  that  the  debt  upon 
which  the  cause  of  action  in  siiid  declaration  mentioned  is 
based  was  not  created  by  fraud.  misrei)resentation  and  false 
pretenses  of  the  defmdant;  nor  did  the  defendant  on  or  about 
the  day  of ,  10.  ..  falsely  and  fraudu- 
lently represent  in  writing  to  the  plaintifTs  that  he  was  the 

owner  of,  and  had  in  his  pos.ses.sion  on  his  farm  in 

township county, ,  (Describe 

property)  aufl  that  they  were  of  sufficient  value  to  secure  an  in- 
debtedness of  $ ;  nor  did  said  [daintifTs  on  said  date  rely 

upon  defendant's  representations  and  give  him  credit  for  said 
sum.  and  then  and  Jhere  release  and  part  with  the  lien  of  a  cer- 
tain chatfrl  mortgage  securing  the  payment  to  plaintiffs  of 
$ and  take  for  security  for  the  debt  herein  sued  upon  a 


224  ANNOTATED   FoKMS  OP   I'LllVDINO   .VND   TIUCTICE 

certain  other  chattel  mortgage  upon  the  (Describe  property) 
above  cK'st-ribetl ;  nor  wtTe  the  rt-pri'smtationH  imuU-  in  writiut? 
by  cift'emlant  litTeinabove  uu'iitiuiird  by  pluintilTs  ininv  and 
liaiululent  and  known  to  be  so  by  the  delemiiiut,  because  he,  tlie 
defendant,  uas  the  owner  ot  (Ueseribe  property;  at  the  time 
and  phue  mentioned  in  plaintiffs'  replieation  herein;  nor  did 
defemhmt  exeeute  and  ileliver  lo  plaintiffs  a  chattel  mortgage 
conveying,'  to  j)hiiiitiffs  saul  (  heserilie  property)  tor  the  purpose 
of  securing;  the  payment  of  a  certain  note,  well  knowing  that  his 
representations   were    false   and    frauduK-nt,    tliereby   ol)taining 

from  said  plaintitVs  credit  in  the  sinn  of  $ and  procuring 

a  rek'ase  by   plaintitTs  of  a  certain  other  chattel  mortgage  on 

certain  cattle,  securing  to  phiintitTs  the  paynn-nt  of  $ nor 

did  defendard  make  false  and  fraudulent  representations  with 
tlie  intent  to  defraud  the  plaintitTs  of  said  debt   and  the  sun> 

of  $ with  interest   tht-reon;  an<l  the  tlefendant  tlenies  all 

and  every  of  the  allegations  in  plaintitTs'  sjiiil  replication  as  to 
fraud,  misrepresentations  and  false  pretenses:  and  of  this  the 
defendant  puts  himself  upon  the  country,  etc. 


Attorney  for  defendant. 
Verdict 


We,  the  jury,  find  the  defendant  not  guilty  on  the  issue  of 
fraud. 

603  Extension  of  performance,  plea,  requisites 

A  plea  which  relies  upon  the  plaintiff's  postponement  of  per- 
formance of  a  contract  nuist  aver  the  defendant's  consent  to 
the  saine.^^" 

604  Further  maintenance  of  the  action,  plea,  requisites 

Any  matter  that  arises  after  the  commencement  of  a  suit 
and  before  plea,  must  be  pleaded  to  the  further  maintenance 
of  the  action ;  any  matter  that  arises  after  plea,  and  before 
replication,  or  after  issue  joined,  whether  of  law  or  of  fact, 
must  be  pleaded  puis  darrein  continuafwc.'^'^^  A  judgment 
recovered  in  another  state  on  the  same  cause  of  action  between 
the  same  parties  may  be  set  up  in  bar  of  tlie  further  main- 
tenance of  another  suit  reGrardless  of  which  suit  was  first  com- 
menced, provided  the  judgment  has  been  paid;  but  not  other- 

iiTHoereth  v.   Franklin  Mill  Co.,  "S  Mount  v.  Scholes,  120  111.  301. 

30  111.  151,  158   (1863).  399  (1887). 


ABATEMLNT    AND    uTllhK    DILATORY    PLEAS  225 

wise."®  Great  strictness  is  re<iiiired  in  framing  pleas  to  the 
further  maintenance  of  the  action  by  reason  of  their  tendency 
to  clehiy  the  i»roeeedings.    They  should  be  verified  by  affidavit.^^o 

G05  Partnership,  plea 

And  tile  i»aid ,  in  his  own  proper  person,  comes 

and  defenils,  etc.,  and  says  that  before  and  at  the  time  of  the 

eoiiimencenient  of  tlie  said  action  of  said    against 

him.   the  siiid    and   the  siiid    were. 

and  for  the  purpose  of  settling  up  and  dis.solving  their  copart- 
nership business  still  are,  copartners  and  as  such  were,  and  still 
for  said  purpose  are,  engaged  in  the  hotel  business  in  the  city 

of ;  that  the  said  c«u.se  of  action  above  specified 

arose  out  of  and  rehites  to  siiid  copartnership  business  and  that 
•said  indebtedness,  if  any  exists  betwtm  s;iid  parties,  is  solely 
and  only   related  to  said  eopartnersiiip   business;  and  that  the 

siiiil  is  not  iiKlcbted  to  .said on  any 

other  account  whatever,  and  that  the  Siiid  items  of  indebtedness, 
if  any  exist  Iwtween  said  parties,  are  involved  in  the  partner- 
ship accounts  of  said  parties  and  are  of  such  a  nature  as  can 
only  be  fairly  a<ljudicatctl  upon  a  full  accounting  between  said 
parties  and  by  a  court  of  e<iuity  ;  and  that  no  such  accounting 
lias  never  been  had  between  said  <'oi)artncrs;  and  that  .siiid 
coi)artnership  business  is  still  unsettled  and  said  copartnership 

for  said  purpose  is  undissolved;  and  this  the  said 

is  ready  to  verify. 

Wherefore,  the  said prays  judgment  of  said  writ 

and  that  tlie  same  may  be  quashed,  etc.'-' 

Replication 

And  the  plaintiff  says  that  the  .said  writ,  by  reason  of  any- 
thini:  by  the  defendant  in  his  .said  plea  above  allct;ed.  ought 
not  to  be  quashed,  bi-cau.se  he  .says  that  at  the  time  of  the  com- 
mencement of  said   action,   the  said    and   the 

said   were  not.  and  are  not  now,  for  the  purpose 

of  settling  up  and  dissolving  their  copartnership  bu.sine.ss,  or  for 
any  other  purpose,  copartners,  and  are  not  now.  as  such  copart- 
ners,  for  said  purpose,  engjiged  in  the    bu.siness 

in  the  city  of ;  and  that  the  said  indebtedness  is 

a  separate  and  distinct  debt,  separate  and  apart  from  any  part- 
nership relations  between  the  said   and  the  said 

;  that  the  said  indebtedness  is  not  involved  in 

the  partnership  accounts  of  the  said  parties,  and  is  not  of  such 

i'»  T>ancashir<>  Ins.  Co.  v.  Cramer,  !='>  Mount  v.  Scholes,  supra. 

1f\^  III.  600;  BowTip  V.  Jov.  9  Johns,  "i  Hartzell    v.    Murray,    224    111. 

221  (N.  Y.  1R12)  ;  Gallaghpr  v.  Dur-  377. 
kin,  12  Johns  99.  101   (1815). 


226  ANNOTATED    FOKMS   OF    TLiLVUlNG    AND    PRACTICE 

a  nature  as  oouUl  only  lio  fairly  adjudicated  upon  a  full  account- 
ing between  wiid  parties  and  by  a  court  of  ecjuity  ;  tliat  surli 
accountiiif?  between  said  copartners  lias  been  bad  and  tliat  said 
copartnursbip  business  is  iuUy  settled  and  said  copartnership  ia 
dissolved.     (Conclude  to  the  country) 

606  Pendency  of  another  suit,  pleading  discontinuance 

The  commencement  of  two  suits  at  tlie  same  time,  for  the 
same  cause  of  action  is  deemed  to  be  vexatious,  oppressive  and 
a  palpable  abuse  of  process,  and  to  mutually  abate  each  other, 
unless  good  faith  is  shown  in  the  eoiiuiieiicement  of  the  seeond 
suit  i)y  discontinuing  the  first  before  the  defendant  is  called 
upon  to  i)lead  in  the  seeond,  so  that  he  is  not  unnecessarily 
harassed  by  the  defense  of  the  two  suits  at  the  same  time.'-- 
In  ordinary  actions,  a  suit  pending  in  one  state  is  not  pleadable 
in  abatement  of  another  suit  brought  in  a  different  state  be- 
tween the  same  parties  on  the  same  cause  of  action. '-^  The 
defense  that  another  suit  is  pending  in  the  state  between  the 
same  parties  on  the  same  cause  of  action  must  be  specially 
pleaded  in  abatement  by  verified  plea ;  it  is  not  available  under 
the  general  issue  and  notice.'-^  This  rule  is  applicable  to  the 
pendency  of  a  garnishment  suit  under  a  statutory  prohibition 
against  the  bringing  of  another  action  during  such  pendency.'-* 
A  plea  of  a  pending  action  is  a  plea  in  abatement  and  must  be 
pleaded  before  any  other  pleadings,  motions  or  steps  taken  in 
the  proceeding.' -«  An  abatement  of  a  second  suit  or  pro- 
ceeding may  be  defeated  by  replying  a  discontinuance  or  a  dis- 
missal of  the  first  suit  or  proceeding  after  the  commencement 
of  the  second.^2^ 

607  Pendency  of  another  suit,  plea,  requisites 

A  plea  in  abatement  of  another  suit  pending  should  set  forth 
the  declaration  of  the  first  action,  or  it  should  refer  to  it  in 
appropriate  manner.'^s     The  continued  pendency  of  the  first 

122  Wales  V.  Jones,  1  Mich.  254,  Near  v.  Mitchell,  23  Mich.  382.  383 
256   (1849).  (1871). 

123  Lancashire  Ins.  Co.  v.  Cor-  125  Near  v.  Mitchell.  supra  • 
betts.  165  111.  .592,  600.  605  (1897);  (4796).  C.  L.  1857   (Mich.). 

Allen    V.    Watt,    69    111.    655,    658  120  Lamb  v.  Chicaeo,  219  111.  229. 

(1873).  234   (1906). 

124  Muir  V.  Kalamazoo  Corset  Co.,  127  Lamb  v.  Chicago    supra 

155  Mich.  624,  628   (1909);  Wilcox  128  Wales  v.  Jones,  1  Mich.  256. 

V.  Kassick,  2  Mich.  165,  178  (1851) ; 


ABATEMENT  AND   OTHER   DILATORY   PLEAS  227 

suit  must  be  averred  in  the  plea  to  show  that  the  second  suit 
is  vexatious.* 28 

608  Plane  administravit 

And  the  said  defendants,  by   ,  their  attornevs, 

conie  and  delend  the  wrong  and  injury,  when,  etc.,  and  pray 
judgment  ot  the  said  writ  and  declaration,  because  they  say 
that  the  defendants  fully  complied  with  all  the  requirements 
of  law  in  the  premises,  paid  off  and  satisfied  all  just  and  legal 
claims  against  the  defendants'  intestate  which  were  duly  filed 

and   presented  and  passed   by  the    court  of 

Y county,  anfl  that  they  had  no  notice  or  knowledge  of 

the  alleged  claim,  and  that  they  have  no  assets  out  of  which 
the  same  could  be  paid.     (Conclude  to  the  country) 

'!»  Wales  V.  Jones,  tupra. 


CH  A  l"r  K  K    XVI 
DK.Ml  KKi:U 


GROUNDS    IN    r.KNFlKAL 

fiS 

609  AvornirntR.  nmlttod  or  wroiiK 

610  DofcctH,   nature 

611  Departure,   nature 

612  Duplicity,  practice 

613  Kstoppel.  practice 

614  Form  of  pleading 

615  MlHstatenient    of    factH.    prac- 

tice 

616  Uncertainty,    waiver,   practice 

WAIVEK    AND   ABANDONMKNT 

617  Waiver,  presumption 

618  Pleading  over,  allowance 

619  Admission 

PRACTICE 

620  Defective  plead  I  ng 

621  DemurrlnK  and  pleading 

622  Time  to  demur 

623  Leave  of  court 

624  Several     demurrers     unneces- 

sary 

625  Wlthdrawinp  demurrer,  effect 

626  Frivolous     demurrer,     motion 

for  judgment 

DEMURRER   TO   DECLARATION 

627  Grounds  generally 

628  General  averments 

629  Good  and  bad  counts 

630  Insufficient  declaration 

631  Measure  of  damages 

632  Misjoinder  of  plaintiffs 

633  Statute  of  limitations 

634  Useless  elements 

GENERAL  DEMtJRBER 

635  Illinois,  single  count 


H 

636 

637 
638 
63& 
640 
641 


C42 
643 
644 

643 
646 
617 
648 

649 
650 

651 
652 


653 
654 
655 


656 
657 
658 
659 
660 
661 


Illinois,     Joint     and     several 

counts 
IlllnolH,  afndavit  of  merits 
Illinois,  certlJlcate  of  cause 
IMlnoiH,  uflldavU  of  irnod  faith 
Maryland 
West   Virginia 

srK«  lAi.  nrMrRRER 

Florida 

IlllnolH,  duplicity 

Illinois,  misjoinder  of  parties 

and  causes 
Illinois,   nonjoinder 
Illinois,  uncertainty 
Michigan,  demurrer 
Michigan,   certificate   of   good 

fallh 
Mississippi  demurrer 
Mississippi.        certificate        of 

counsel 
Virginia,  demurrer 
Virginia,  grounds  of  demurrer 

OYER 

Craving  oyer 

Craving  oyer  and  demurrer 

Craving  oyer,  order 

DEMURRER    TO    PLEA 

Discontinuance 

Grounds  generally 

General  issue,  plea  amounting 

Immaterial  issue 

Insufficient  traverse 

Same  defense,  practice 


228 


DEMURRER 


229 


S9 

662  District  of  Columbia 

663  Florida,  demurrer 

661  Florida,  affidavit  of  good  faith 

665  Florida,  certitlcate  of  counsel 

666  IlliDois;         conclusioa        and 

prayer,  want  of 

667  Illinois;    general  grounds 

668  Illinois;  general  Issue, 

amounting 

669  Illinois;   InsufBclont  traverse 

670  Maryland;   demurrers 

671  Maryland;    setting  hearing 

672  Withdrawing  pita 

DEMURRER    TO    REPLICATION 

673  District   of  Columbia 

674  Illinois;    general  demurrer 

675  Illinois;    special,    departure 
£76  Illinois;         special.        genera! 

causes 

JOINDER 

677  Florida,   form 

678  IllinolH.   form 

679  Michigan,  necessity  of  Joinder 

680  Michigan,  form 

681  Virginia,  form 


CONSTRUCTION 

S9 

682  Nature  and  effect 

683  Admissions 

684  Inferences 

CARRYING     BACK     DEMURRER 

685  Rule 

686  Application    to    declaration 

687  Application   to   information 

688  Application  to  plea 

689  Motion,  necessity 

JUDGMENT 

690  Necessity  of  judgment 

691  Confessing      and      sustaining 

demurrer,  order 

692  Sustaining    demurrer,    gener- 

ally, appeal 

693  Sustaining     demurrer.     Judg- 

ments 

694  Overruling    demurrer    to    dec- 

laration, practice 

695  Overruling    demurrer    to    dec- 

laration. Judgments 

696  Overruling  demurrer  to  plea, 

nature  and  effect 

697  Withdrawing   demurrer,  costs 


GROUNDS  IN  GENERAL 

609  Averments,  omitted  or  wrong 

Tho  omission  or  the  wronp  averment  of  some  fact  which  is 
material  to  the  cause  of  action  or  defense  can  be  taken  advan- 
tage of  only  by  demurrer.'  Thus  a  declaration  in  assumpsit 
which  shows  on  its  face  a  want  of  consideration  for  the  contract 
constituting  the  cause  of  action  is  subject  to  a  general  demurrer.^ 

610  Defects,  nature 

A  dcftit  is  subject  to  demurrer  although  it  is  not  assignable 
as  error  in  a  reviewing  court.' 


1  Home  Ins.  Co.  v.  Favorite,  46 
111.  263,  267   (1867). 

iS<'hwerdt  v.  Schwerdt.  23.'5  III. 
386   (1908). 


3  Beaubien  v.   Hamilton,  3   Scam. 
213.  315   (1841). 


230 


ANNOTATED    FORMS   OP    PI.EADlNd    AND    PR-VCTICE 


611  Departure,  nature 

A  departure  in  pleailintf  is  a  matter  of  subutaiiee  aiid  ground 
for  general  demurrer.* 

612  Duplicity,  practice 

A  d.iiiurivr  lor  duplieity  iiiu.st  Ih'  api'cial,  not  general;*  and 
the  demurrer  must  spreilieully  .state  in  what  the  duplieity  eon- 
gists."  A  party  waives  the  ri^'ht  to  ohjeei  on  aeeuuut  uf  ilu- 
plieity  in  a   pleading  by   failing  to  demur  specially." 

613  Estoppel,  practice 

Matter  wlii.h  uprnitt-s  as  an  estoppel  may  he  taken  advan- 
tage of  hy  tlemurrer  if  the  matt.-r  apprai-s  on  the  faee  of  th«' 
pleading."  If  the  niatt.r  of  estoppel  iloes  not  so  appear,  the 
proper  course  is  to  plfa«l  the  matt«r  Hpcrially." 

614  Form  of  pleading 

In  Illinois,  l>ut  not  in  Florida,  a  party  has  a  right  to  interjwse 
a  demurrer  to  jjuestion  the  form  of  a  pleading.'"  .\  dt'f.-et  in 
form  eau  be  reaehed  only  by  special  ilemurrer.'«  Thus,  an 
imi)rop«'r  conclusion  to  the  declaration  is  reachable  by  special 
demurrer. '- 


615  Misstatement  of  facts,  practice 

The  misstatement  of  material   facts  in  a  pleading  cannot  be 
reaehed  by  demurrer.     Tlie  proper  practice  is  to  show  the  true 

fai'ts   by    plea.'^ 


•»  Tillis  V.  Liverpool  &  Lomlon  & 
Glolv  Ins.  Co..  41)  Fla.  2G8,  277 
(1903). 

5  Kranoy  v.  Truo.  20  TU.  1S4.  ISfi 
(18G1);  Sims  v.  KKmii,  Hreese.  302 
(1829);  Armstrong  v.  Welch,  30  111. 
333  337  (1863);  Wilson  v.  Gilbert, 
16l'  111.  40,  53  (1S9G);  Chioapo 
West  Division  Ry.  Co.  v.  Ingraham, 
131  111.  659,  665    (1890). 

oKipp  V.  Bell,  86  111.  577,  578 
(1877). 

7  Wilson  V.  Gilbert.  161  111.  52. 

s  McCarthy  v.  Alphons  I  nstotlis 
Chimney  Construction  Co.,  219  111. 
616,  623    (1906). 


•  Smith  V.  Whitakor,  11  111.  417 
(1849):  McCarthy  v.  Alphons  C-.s 
todi.s  Chimney  Construction  Co..  219 
111.   622. 

10  Miller  y.  Blow,  68  111.  304.  308 
(1873);  Camp  &  Bros.  v.  Hall,  39 
Fla.  .53.-).  5GS    (1897). 

11  People  V.  Monroe.  227  111.  604, 
612    (1807). 

12  Winchester  v.  Rounds.  55  111. 
451.  454    (1870). 

13  People  V.  Harrison,  253  111.  625, 
630    (1912). 


DEML'KRER 


231 


616  Uncertainty,  waiver,  practice 

Uncertainty  in  a  pleading  must  be  challenged  by  special 
demurrer;'*  and  it  is  cured  by  verdict  if  not  so  challenged.'* 

WAIVER  AND  ABANDONMENT 

617  Waiver,  presumption 

In  Illinois,  error  in  overruling  a  demurrer  is  waived  by  plead- 
ing over,'"  or  by  going  to  trial  of  a  cause  upon  the  merits,  by 
consent,  without  joinder  in  demurrer,  and  without  calling  it  up 
for  dis|)osition,''  although  no  plea  be  tiled  in  the  case.'**  In 
Virginia,  error  in  overruling  a  demurrer  is  not  waived  by  the 
subsequent  pleatling  of  the  general  issue  and  going  to  trial 
thereon.'*  Rejoining  to  a  replication  after  a  demurrer  to  it 
has  been  overruled  waiveH  the  demurrer  and  admits  the  sufli- 
cieney  of  the  n-plieation.-'*  Krror  in  overruling  a  demurrer, 
which  is  waived  by  pleading  over,  may  be  saved  for  review  by 
a  motion  for  judu'inent  n<tn  oLstnntt  tv  nV/iV/o.-'  Substantial 
defects  in  a  pleailing  which  render  it  insufficient  to  sustain  a 
judgment  are  not  waived  by  pleading  over.--  It  is,  therefore, 
not  nece«8ary  to  abide  by  a  demurrer  to  a  deelaraticjn  which 
atates  a  defective  cans**  of  action  to  avail  of  the  defect  on  appeal 
or  error.  Pleading  the  general  issue  to  such  a  declaration  does 
not  waive  the  defect. =^  Pleading  to  the  merits  after  a  demurrer 
to  a  plea  in  abatenunt  has  been  sustained  does  not  waive  the 
demurrer.-*     The  mere  tiling  of  a  plea  after  a  demurrer  has 


T.      Chioaifo      I'nion 
239     III.     021,     623 


i«  nrunhild 
Trartion  Co., 
(1909). 

tsllincblifr  T.  Rudnik,  212  111. 
569,  ST-'j    (1904). 

••Dickhut  V.  Durrell.  11  111.  72, 
85  (IS49);  Noriln-x  v  Van-lalia  R. 
Co.,  242  III.  1»'»).  !•  .  iVoi.lf 

T.  Walkrr  Of-Tii  1  .  249  III. 

106,  109  (1911);  t  ritni.  v.  Small, 
44  III.  37.  39  (1867);  S4<n)y  v. 
llufrhinwn,  4  Gilm.  319,  .328  (  1^47)  ; 
MrFa.l.l.'ti  v.  Fortior.  20  111.  r.oO, 
515  (1H5S);  Finch  &  Co.  v.  Zenith 
Furnace  Co.,  24.-.  III.  586.  591 
(1910);  Cirier  v.  Cfil-son,  36  III.  .''.21 
(1864);  HoimbrrKor  v.  Elliot  Fro(f 
*  Switch  Co.,  24.-5  III.  448,  4.-2 
(1910). 

«'  Hopkins  v.  W(»ofIwar«l,  7.')  III. 
62,  64  (1874);  Williamfi  v.  Baker, 
67  111.  238,  240   (1873) 


!•  Devine  V.  (Iiicaeo  City  Ry.  Co., 
237    III.   278,  283    (1908). 

«»  Huek  V.  Vance,  112  Va.  28 
(1911). 

2«  littr  V.  Philips.  Breese,  44 
(1822);  Wann  v.  McGoon,  2  Scam. 
74,  77  (1839). 

21  Amhler  v.  ^^^lipple,  139  III.  311, 
.".22  (1891);  Wood.s  v.  Hynes,  1 
Scam.    103,   105    (1833). 

21  Chicago  &  .Mton  R.  Co.  v.  Clau- 
sen, 173  III.   100.   I<i2.  103    (1898). 

23  Chicajfo.  Rock  Island  &  Pacific 
Rv.  Co.  V.  People,  217  111.  1(34,  172 
(i905). 

2«  Wolri  V.  Iluhhard.  11  111.  .'")74 
(1850);  Locomotive  Firemen  v. 
Cramer,  164  III.  9.  13  (1896);  Ban- 
gor Furnace  Co.  v.  Maf^ll,  108  III. 
656    (1S84),   overruled. 


232  ANNOTATED   FORMS   OF    I'LtLVUINQ    AND   I'R.\CTICE 

been  interposed  to  the  same  matter  does  not  constitute  a  waiver 
of  tlie  deuiurrer  hy  the  dulVndant ;  nor  is  there  a  waiver  of  the 
demuirer  hy  phiintitV  until  he  joins  issue  on  the  pK'a.-*  A 
demurrer  is  not  waived  if  there  is  a  joimUr  in  it.  Nor  will  the 
waiver  of  a  demurrer  be  presumed  from  the  mere  allf(?atiou  in 
the  reeortl  thiit  issue  was  joined  and  parties  proeeeded  to  trial 
before  :i  jury.-*' 

618  Pleading  over,  allowance 

A  paiiy  may  phad  ovi-r  without  first  withdrawinjf  a  dt-mur- 
rer.-^  A  eourt  has  no  i)OWt'r  to  prevent  an  express  waiver  of 
a  denniner  to  a  deelaration.-*  Under  Miehi^jan  praetiee,  it  is 
discretionary  with  tin-  trial  court  to  permit  or  to  refuse  a  party 
to  plcatl  over  after  the  overruling  of  his  ilemurrer.  Tlu'  miftion 
or  application  tor  leave  to  [)lead  over  iiuist  he  made  promptly 
and  it  should  he  supported  hy  a  showing  of  merits.-" 

619  Admission 

The  suflicieney  of  a  pleadint:  is  admitted  hy  pleading  over 
after  a  demurrer  to  it  has  been  overruled.'"*  This  admission 
will  not  prevent  a  party  from  nuikin^j  an  issue  of  fact  upon 
some  of  the  allegations  of  the  demurred  pleading.'*'  Upon  the 
abandonment  of  a  denuirrer  to  a  declaration  the  plaint itT  is 
put  ui)OU  proof  of  the  nuiterial  allegations  in  it.^* 

PRACTICE 

620  Defective  pleading" 

A  dofci-tive  ph'ailin'-T  cannot  be  reaciied  by  a  motion  to  ex- 
elude  evidenee.''-'  A  pleading  which  is  defective  in  part,  nuist 
be  taken  advantage  of  by  motion  to  strike  out  the  irrellevant 
and  foreign  matter. ^'^ 

25Eflbrooke  v.  Cooper.  70  Til.  r.*^^.  0.  n  (1900);  Indianapolis  &  St.  L. 

583   (1875).  R.  Co.  v.  Morgenstcrn,   106  111.  21fi, 

26  Nye    V.    Wright,    2    Scam.    222  221   (1883). 

(1840).  31  People    v.    Karr,    244    111.    r>74, 

27Nordhaii9   v.    Vandalia    R.    Co.,  383  (1910) ;  People  v.  Gary,  196  111. 

242  111.  166,  169  (1909).  310.  319   (1902). 

28  Hull    V.    Johnston,   90   111,   604,  12  Russell    v.    Whiteside,    4    Scam. 

(1878).  7   (1842). 

20  Wvckoff.  Seamans  &  Benedict  V.  -i.i  Rnthsrhild   v.   Bru.^.'ke,   131   111, 

Bishop!  08  Mich.  352,  355    (1894),  265,  271  (1890). 

30  Hepler  v.  People.  226  111.  275,  ^*  Griffing   Bios.    Co.   v.    Winfield, 

278  (1907) ;  Wolf  v.  Flowers,  241  IlL  53  Fla.  .589  (1907). 


DEMURRER 


233 


621  Demurring  and  pleading 

In  actions  at  law,  it  is  not  permissible  to  plead  and  demur 
to  the  same  matter  at  the  same  time.^^    A  defendant  may  demur 
to  one  count  and  plead  to  another,  because  separate  counts  are 
regarded  as  several  declarations.^"     A  statute  which  gives  the 
right  to  a  defendant  to  plead  as  many  several  matters,  whether 
of  law  or  fact,  as  he  shall  deem  necessary,  is  hnuted  to  him 
alone,  and  does  not  extend  to  subsequent  pleadings  or  to  the 
plaintitT.      To   overcome    this   inconvenience,   the   practice    has 
been  established  to  tirst  demur,  and  upon  the  overruling  of  the 
demurrer,  to  withdraw  it  and  then  to  plead  or  answer.     The 
omission  to  withdraw  a  demurrer  to  a  plea  precludes  the  plain- 
tiff  from   answering   and  entitles  the   defendant    to   judgment, 
unl.-ss  the  parties  and  the  court  have  treated  the  demurrer  as 
having  been  withdrawn.^' 

622  Time  to  demur 

No  demurrer  is  pleadable  after  pleading  a  matter  of  fact,^^ 
except  in  Illinois,  in  a  cum-  of  a  relea.se  of  erroi-s.^'»  Nor  can  a 
demurrer  be  int.rposr.l  aft.r  an  issue  of  fact  has  been  made 
up;  and  if  a  demurrer  is  thus  tiled,  it  need  not  be  noticed.^" 

623  Leave  of  court 

Proce.-ding  to  trial  without  a  demurrer  waives  the  right  to 
file  it  without  special  leave  of  court ;  and  if  a  demurrer  is  im- 
properly filed,  it  may  be  stricken  out.''^ 

624  Several  demurrers  unnecessary 

It  IS  good  practie.N  to  avoid  encumbering  the  record,  to  file 
a  general  demurrer,  where  general  demurrers  are  permissible, 
and  to  make  it  several  to  each  of  the  counts.^ 

.5  People    V.    Central    mion    Tel.  no  Sehaeffer  v.  Ardery,  238  111.  557. 

^^;;^^:!-  ^:;.^L;.!^r\ie„. .  ^S'--  "^""^"' "  "•  "• 

""^^^l.^  ^'o.!:'5^.  CO.   V.        VJ^J  V.  Norwooa.  106  111.  558, 

^"i??   ^^''^'I^e'^^e      '':^l^^  V    Gaddis,  13  111.  329, 
1887  ^  '  336.337(1851). 

s«  Austin  V.  Bainter.  40  111.  82,  83 
(1866);  obviated  by  Sec.  109,  c. 
110  Rev.  Stat.    (lU.). 


234  ANNOTATED    FORMS   OK    I'l.KADINCJ    AND    PRACTICE 

625  Withdrawing  demurrer,  effect 

The  granting  or  the  refusing  of  a  motion  for  leave  to  with- 
draw a  demurrer  and  to  plead  rests  in  the  trial  court's  discre- 
tion.^^ A  plaiutitr  may  be  permitted  to  withdraw  his  demurrer 
to  a  plea  in  abatement  and  to  take  issue  thereon.**  The  with- 
drawal of  the  pleading  demurred  to,  under  leave  of  court,  also 
withdraws   the   demurrer,   even   after   it    has   been   sustained.*' 

626  Frivolous  demurrer,  motion  for  judgment 

*"  And  now  comes  the  said  plaintiff by    .... 

,  its  attorney,  and  moves  the  court  that  judgment  be 

entered  for  the  plaintiff  on  the  demurrer  of  the  defendant  to 
said  i)laintiff's  declaration.  l)asin<,'  this  motion  upon  tln'  follow- 
ing' {^rounds,  viz.:  that  the  defendant's  demurrt-r  is  frivolous; 
that  said  demurrer  is  not  l)as<'d  upon  any  f^rouml  that  is  appar- 
ent upon  the  face  of  the  declaration  in  said  cause;  and  that  it  is 
in  i)urpose  and  effect  for  delay  merely.  This  motion  is  also 
founded  upon  the  declaration  in  said  cause. 

Dated,  etc. 


Plaintiff's  attorney. 
DEMTRRER  TO  DECLARATION 

627  Grounds  generally 

A  special  demurrer  should  present  every  ground  that  is  ex- 
pected to  be  relied  upon  appeal  in  case  the  demurrer  is  over- 
ruled ;  as  a  reviewing  tribunal,  in  fairness  to  the  trial  court, 
will  not  pass  upon  points  which  were  not  urged  in  that  court. ^^ 
All  of  the  objections  that  are  sought  to  be  urged  by  the  special 
demurrer  must  be  specifically  set  forth. "♦^ 

628  General  averments 

An  objection  to  a  declaration  based  upon  a  generality  of 
averment  can  only  be  made  available  on  demurrer;  such  an 
objection  cannot  be  raised  after  verdict.^^ 

43  Harrington    v.    Stevens,    26    111.  *''  Keyston       Lumber       Yard       v. 

298,  300   (1861).  Yazoo  &  M.  V.  R.  Co.,  94  Miss.  192 

"Heslep   V.   Peters,   3    Scam.    45,  (1908). 

56  (1841),  48  Bead    v.    Walker,    52    111.    333, 

45  George  v.  Bischoff,  68  111.  236,  335   (1869). 

238   (1873).  49Chenoweth  v.  Burr,  242  111.  312, 

46  See  Section   211,   Note  60.  316  (1909). 


DEMURRER  235 

G29  Good  and  bad  counts 

A  general  demurrer  is  improper  to  a  declaration  which  con- 
tains good  and  had  counts;  ^"  nor  to  a  count  which  states  a  dis- 
tinct good  cause  of  action  and  also  one  that  is  imperfect.^i  Nor 
is  a  general  demurrer  good  to  an  entire  count  which  contains 
one  good  assignment  of  a  hreach  although  some  of  the  other 
counts  or  assignment  of  breaches  are  defective.'^-  Neither  is  a 
general  demurrer  good  to  a  declaration  which  contains  common 
and  special  counts.^^ 

630  Insufficient  declaration 

Tnsuffieiency  of  n  declaration  must  he  urged  by  demurrer.^* 

631  Measure  of  damages 

The  tjuestioii  of  the  measure  of  damages  or  the  extent  of 
recovery  elaimed  in  a  declaration  cannot  be  urged  on  a  general 
demurrer.^* 

632  Misjoinder  of  plaintiffs 

A  misjoinder  of  plaintiffs,  if  it  appears  on  the  face  of  the 
record,  must  be  raised  by  demurrer. ^'• 

G33  Statute  of  limitations 

The  defense  of  the  statute  of  limitations  cannot  be  made 
available  by  demurrer,  even  where  the  defense  is  disclosed  by" 
the  declaration  itself.*^ 

634  Useless  elements 

Useless  elements  of  recover}'  contained  in  a  count  may  be 
reached  by  motion  to  strike,  but  not  by  demurrer.^* 

BO  Bills  V.  Stanton,  69  111.  51,  53  R.  Co.  v.  Harwood,  90  111.  425,  427 

ri873)  (1878). 

Bi  Lufk  V.  Cook.  Breese.  84  (1824).  '5  Beidler  v.  Sanitaiy  District,  211 

6iGov..rnor  v.  Ridpwav.  12  111.  14,  111.  628.  640  (1904)  :  Tillis  v.  Liver- 

15  (1850) ;  Stout  v.  \\Tiitncy,  12  111.  pool  &  London  Globe  !"«•  ^o- ^"P'?- 

218    "31    n850)-    Bradv  v.  Spurck.  so  Galena  v.  Galena  Water  Co.,  ^-iy 

27  in:  478.  482  (mi).'  I".   128.   132    (1907) 

63  Barber  v    ^Vllitnev,  29  111.  439  st  Peterson  v.  Manhattan  Life  Ins. 

(186?>     Knapp.  Stout  &  Co.  v.  Ross,  Co..  244  111.  329.  334  (1910). 

181    111     39"    (1899)  isTiUis  v.  Liverpool  &  London  & 

6*  Chicago,    Burlington    &    Quincy  Globe  Ins.  Co.,  46  Fla.  268,  276. 


236  ANNOTATED    FORMS   OK    I'LEAUINO    AND    I'KACTICE 

GENER^VL  DEMURRER 

635  Illinois,  single  count 

And  the  said  defendant     ,  by ,     h     attorney     , 

come  and  dcrcnd       ,  etc.,  when,  etc.,  and  say 

that  the  count  of  said  declaration  and  the  mat- 
ters therein  contained,  in  manner  and  form  as  tlie  same  are 
above  set  fortli,  are  not  suflicicnt  in  hiw  for  the  plaintitf  to 
maintain  his  aforesaid  action,  and  that  he  ,  the  defend- 
ant ,  (is  or  are)  not  bound  by  law  to  answer  the  same;  and 
this       he        ....    ready  to  verify:    Wherefore,  for  want  of  a 

sufficient count  in  said  dcchii-ation  in  this  behalf,  the 

defendant  pray  ju(lj,Mnent  and  that  the  plaint  ill"  nuiy  be 
barred  from  maintaining  his  aforesaid  action,  etc. 


Attorney       for  defendant 


636  Illinois,  joint  and  several  counts 

And  the  said  defendant  eoiiies  and  defends  the  wrong  and 
injury,  wiien,  etc.,  and  says  that  the  said  several  counts  of  the 
said  declaration,  and  the  matters  and  things  therein  contained, 
in  manner  and  form  as  the  same  are  above  pleaded  and  set 
forth,  are  not  suftieient  in  law,  nor  are  either  of  said  counts  of 
said  declaration  sufficient  in  law  for  the  said  plaintiff  to  have 
and  maintain  his  aforesaid  action  thereof  against  him  tlie  said 
defendant,  and  that  he  is  not  bound  l)y  law  to  answer  the  same; 
and  this  he  is  ready  to  verify;  wherefore,  etc.^'^  (Conclude  as 
in  preceding  form) 

637  Illinois,  affidavit  of  merits 

In  ordinary  civil  actions,  no  affidavit  of  merits  is  necessary  to 
be  filed  in  Illinois  with  the  demurrer.""  In  attachments  of 
water-craft  an  affidavit  of  merits  is  an  essential  part  of  the 
demurrer.^  ^ 

638  Illinois,  certificate  of  cause 

hereby  certifies  that  he  is  the  attorney  for  the 

plaintiff  (or  defendant  or  respondent)  herein  and  that  in  his 
opinion  the  foregoing  demurrer  to  the  plea  (declaration  or  peti- 
tion for,  etc.)  of  the  defendant  (or  plaintiff)  filed  herein,  is  well 
founded  in  law. 

59  Sanford  V.  GadfTis,  13  111.  330.  105   111.   462,  467;    affirmed    119  U. 

60  Sec.  55,  Practice  act  1907.  S.  388   (1882-1886);   Sec.  19,  c.  12, 

61  Johnson  v.  Chicago  &  P.  E.  Co.,      Hurd  's  Stat.  1909. 


DEMURRER  237 

639  Illinois,  affidavit  of  good  faith 

,  being  first  duly  sworn,  deposes  and  says  that 

he  is  the  agent  and  attorney  in  this  behalf  of  the  plaintiff  (or  de- 
fendant) herein  and  that  he  is  duly  authorized  to  make  this 
affidavit  on  behalf  of  said  plaintiff' (or  defendant)  and  that  the 
foregoing  demurrer  to  the  plea  (or  declaration)  of  the  defend- 
ant (or  plaintiff)  filed  herein  is  not  interposed  for  delay.  Fur- 
ther affiant  says  not. 


Subscribed,  etc. 

640  Maryland 

The  defendant ,  a  body  corporate,  by  

.  . .  . ,  its  attorney,  demurs  to  the  declaration  filed  in  the  above 
entitled  case,  and  for  rea.son  siiys: 

1.  That  it  is  bad  in  substance. 

2.  That  it  is  insufficient  in  law. 


Attorney  for  defendant. 

641  West  Virginia 

The  demurrer  of    ,   guardian  ad  litem   for  the 

above  named  infant  defendants 

The  said   ,  guardian  ad  litem,  as  aforesaid,  for 

and  on  behalf  of  the  said ,  says  that  the  said  .... 

^  of  said ,  filed  in  this  cause,  is  not  suffi- 
cient in  law. 

AVherefore.  he  prays  judgment  of  the  court  whether  he,  as 

guardian  ad  litrm,    or  the  said  infants,  or  either 

of  them,  shall  be  required  to  make  any  further  or  other  answer 
to  said  petition. 

Guardian  ad  litem  for 

By   ;• 

their  guardian  ad  litem. 

SPECIAL  DEMURRER 

642  Florida 

Special  demurrers  are  not  permissible  in  Florida.®^ 

643  Illinois,  duplicity 

(Precede  this  bv  general  demurrer,  then  add:) 
And  the  said  defendant  according  to  the  form  of  the  statute 
in  such  case  made  and  provided  states  and  shows  to  the  court 

«2Camp  &  Bros.  v.  Hall,  39  Fla. 
53.5,  .568  (1S97);  Sec.  1430,  Genl. 
Stats.  1906  (Fla.). 


238  ANNOTATED    FORMS   OF    PLEADING    AND    I'KACTICE 

here  tho  following:  causes  of  domurror  to  the  said 

count  of  the  said  dechiration,  tiiat  is  to  say,  that  the  said   .  .  .  . 

.......  .count  of  the  said  declaration  is  double  and  nudtifari- 

ous  in  this  that  it  alleges  and  states  two  or  more  distinct  cau.ses 
of  action  against  the  said  defendant  and  presents  and  otTcrs  two 
or  more  separate  and  distinct  issues  to  be  decided  in  this,  that 
it  states  that  the  said  defendant  by  its  sen-ants  failed  to  rin^,'  a 
bell  or  blow  a  whistle  thereby  causing  the  injury  complained  of. 
and  that  the  said  defendant  by  its  servants  carelessly,  negli- 
gently and  wilfully  drove  its  engine  thereby  causing  the' injury 
complained  of;  and  the  said  count  is  in  various  other  respects 
repugnant,  multifarious,  insufficient  and  immaterial.  ( Aild  to 
this  and  subse(|uent  demurrers,  certificate  of  cause  and  at^idavit 
of  good  faith,  or  non-delay,  as  under  Sections  (J.'JS  and  6;J9.) 

644  Illinois,  misjoinder  of  parties  and  causes 

(Precede   this  by   general   demurrer,    then   add:)      And    the 

said and according  to  the  form  of  the  statute  in  such 

case  made  and  provided,  state  and  show  to  the  court  liere  the 
following  causes  of  demurrer  to  the  said  declaration,  that  is  to 
say,  for  that  the  said  })laintifT  h  declared  against  the  said 
defendants  in  action  of  assumpsit  for  supposed  breaches  of  ox- 
press  promises  to  pay  the  phiintiff  the  sum  of dol- 
lars ($....),  with  interest   in  accordance  with  the  terms  of  a 

certain  writing  obligatory,  which  the  said  defendant, 

was  not  a  party  to,  or  bound  or  obligated   by,  and   has  also 

declared  against  the  said  defendant, *.  in  an  action  of 

assumpsit  for  supposed  breaches  of  express  promises  to  pay  the 
plaintiff  certain  sums  of  money  in  accordance  with  the  terms 
of  a  certain  instrument  in  writing,  to  which  the  said  defendant 

'ind   were  not  parties  to.  or  bound  by;  and  also, 

for  that  there  are  in  the  said  declaration  different  pretended 
causes  of  action   founded  upon   different   supposed   obligations 
and  promises  which  are  incompatible,  and  ought  not  to  be  joined 
in  the  same  declaration. 
Wherefore,  etc. 

or 

For  that   in   and  by  said   declaration,   and   each   and  every 
count  thereof,  the  said  plaintiff  hath  declared  and  complained 

against  the  defendant,   ,  and  the  defendant 

• ,  as  joint  tort  feasors ;  but  as  is  shown  by  said 

declaration,  there  are  pretended  causes  of  action  different  in 
their  nature,  mode  of  proof  and  degree  of  liability  compre- 
hended and  included  in  each  and  every  count  thereof;  to  wnt, 

a  pretended  cause  of  action  against  the  defendant,  

•  -^ arising  out  of  contractual  relations  between  it  and  the 

said  plaintiff,  its  servant;  and  a  pretended  cause  of  action 
against  the  defendant,    with  which  said  defend- 


DEilURKEn  239 

ant,  the  plaintiff,  never  had  contractual  or  other  relations 
whatsoever;  which  said  pretended  causes  of  action  are  incom- 
patible with  each  other,  and  ought  not  to  be  joined  in  the  same 
declaration  against  the  said  two  defendants;  and  also  for  that, 
in  and  by  said  declaration,  and  each  and  every  count  thereof, 
conclusions  of  law  are  alleged  without  statements  of  fact  upon 
which  such  conclusions  are  predicted;  and  also  that  the  said 
declaration,  and  each  count  thereof,  is  in  other  respects  uncer- 
tain, informal  and  insufficient,  etc. 
Wherefore,  etc. 

645  Illinois,  nonjoinder 

And  the  said  defendant,  by  his  attorney,  says 

that  the  declaration  in  this  cause  is  not  sufficient  in  law,  and 
the  said  defendant  shows  and  specifies  the  following  causes  of 
demurrer  thereto,  that  is  to  say :     Under  the  allegations  of  said 

declaration,   is  jointly  entitled  with  the  plaintiff 

to  any  damages  which  might  be  recovered  in  said  suit,  and  the 
plaintiff  is  not.  as  alleged  in  said  declaration,  solely  entitled 
thereto;  and  also  that  the  said  declaration  is  in  other  respects 
uncertain,  informal,  and  insufficient,  etc. 

646  Illinois,  uncertainty 

And  the  said  defendant     .by h       attorney 

Bay  that  the  declaration  is  not  sufficient  in  law.  And  the 
defendant  show  to  the  court  here  the  following  new 
cause  of  drmurrer  to  the  said  declaration  and  each  count  thereof 
that  is  to  say : 

The  plaintiff  ha  filed  with  h  said  declaration  in 
obedience  to  the  order  of  court  herein  an  itemized  statement  oi" 
account  and  made  the  same  a  part  of  h  said  declaration 
which  being  read  and  heard  the  defendant  say  that  said 
statement  shows  an  account   of  the  said   plaintiff       with   one 

but  not  with  these  defendants:  whereby  the  said 

declaration  and  each  count  thereof  is  rendered  uncertain,  in- 
formal and  insufficient,  etc. 

647  Michigan,  demurrer 

Now  comes  the  said  defendant  by ,  his  attorney, 

and  says  that  the  said  declaration  is  not  sufficient  in  law  for 
the  reason  that  (Add  briefly  and  plainly  the  special  reasons  in 
matter  of  subst-ance,  as  well  as  of  law.)  ^^ 


Defendant's  attorney. 


*'  Circuit  court  rule  5  (a)  ; 
(10068),  (10069),  C.  L.  1897 
(Mich.). 


240  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

648  Michig-an,  certificate  of  good  faith 

I  hereby  eertify  that  1  am  the  counsel,  having  proper  charge 
of  the  above  entitled  cause,  in  behalf  of  tiie  above  named  defend- 
ant; that  the  foregoing  demurrer  is  not  interposed  for  delay; 
and  that  in  my  opinion  the  same  is  well  founded. 

Dated,  etc. 

Defendant's   attorney. 

649  Mississippi,  demurrer 

Comes  the  defendant  herein,   ,  by  attorney   .... 

,  and  demurs  to  the  declaration  herein  filed  against  him 

by  the  plaintitf,  ,  and  for  cause  of  demurrer,  says 

as  follows:  1.  The  declaration  is  insufficient  in  law.  2.  The 
declaration  does  not  set  out  a  cause  of  action.  3.  It  is  not 
shown  that  there  was  any  promise  on  the  part  of  the  defendant 
to  pay  any  sum.  4.  It  is  not  alleged  that  the  defendant  im- 
pliedly promised  to  pay  any  stated  .sum.  5.  It  is  not  alleged 
that  the  defendant  expressly  or  impliedly  promi.sed  to  pay  the 
amount  alleged  to  be  due,  or  any  amount.  6.  It  is  not  shown 
that  the  charge  was  usual  or  reasonable  or  that  it  was  assented 
to  by  the  defendant.  7.  For  other  causes  to  be  shown  at 
the  hearing.     Wherefore,  defendant  prays  judgment.*'^"' 

Defendant's  attorney. 

650  Mississippi,  certificate  of  counsel 

I,    ,   do   hereby   certify   that   I   believe   that   the 

grounds  on  which  the  above  demurrer  is  based  are  well  founded, 
and  that  the  demurrer  should  be  sustained. 


attorney. 

651  Virginia,  demurrer 

The  defendant  comes  and  says  that  the  declaration  is  not 
sufficient  in  law  for  the  following  reasons  and  others  to  be 
assigned  at  the  bar  of  the  court. 

1.     (State  grounds  in  numerical  order)  ^^ 

p.  d. 

652  Virginia,  grounds  of  demurrer 

1.  The  negligence,  if  any,  was  the  negligence  of  an  inde- 
pendent contractor,  to  wit, ,  for  whose  acts  the  de- 
fendant in  tbis  suit  was  not  and  is  not  responsible. 

•*  Sec.  754,  Miss.  Code  1909.  es  Sec.  3271  Va.  Code  Ann. 


DEMURRER  241 

2.  Defendant  denies  all  allegations  of  negligence  in  the  dec- 
laration and  each  count  thereof. 

3.  The  defendant  denies  that  it  was  negligent  in  failing  to 
supply  suitable  appliances  and  instrumentalities,  and  on  the 
contrary  says  that  the  same  were  in  safe  and  proper  condition. 

4.  The  defendant  denies  that  it  failed  to  perform  any  legal 
duty  as  to  inspecting  or  keeping  in  safe  condition  and  repair 
its  appliances  and  instrumentalities. 

•5.     The  plaintiff  assumed  the  risk. 

6.  The  plaintiff  was  guilty  of  negligence  on  his  own  behalf, 
which  caused  or  contributed  to  his  injury. 

7.  The  negligence,  if  any,  was  that  of  a  fellow-servant. 

OYER 

653  Craving  oyer 

At  common  law  oyer  cannot  be  had  of  an  instrument  which 
is  not  under  seal  and  of  which  no  profert  is  made.^*^  The  right 
to  oyer,  in  Illinois,  has  been  extended  to  all  written  instru- 
ments, whether  under  seal  or  not,  and  it  is  not  made  dependable 
upon  profert;  but,  this  right  is  limited  to  instruments  in  writ- 
ing declared  upon  and  constituting  the  cause  of  action  or  de- 
fense; it  does  not  apply  to  instruments  constituting  mere  induce- 
ment."^ A  variance  between  a  pleading  and  the  instrument 
sued  upon,  set  up  as  a  defense,  may  be  raised  by  craving  oyer 
and  demurring,  provided  the  instrument  is  of  a  proper  cliarac- 
ter.^8  If  the  nature  and  effect  of  a  contract  is  misstated  in  a 
declaration  the  defendant  should  crave  oyer  and  demur  to  it.''^^ 

654  Craving  oyer  and  demurrer 

And  the  said  defendant ,  by ,  his 

attorney,  comes  and  defends  the  wrong  and  injury,  when,  etc., 
and  craves  oyer  of  the  supposed  writing  obligatory  in  said 
declaration  mentioned,  and  it  is  read  to  him,  in  these  words: 
(Insert  copy  of  instrument  sued  on). 

Which  being  read  and  heard,  the  defendant  says  that  the  said 
declaration  and  the  matters  and  things  therein  contained,  in 
manner  and  form  as  the  same  are  above  pleaded,  are  not  suffi- 
cient in  law  for  the  plaintiff  to  maintain  his  aforesaid  action  and 

'••'■■  Gatton   V.   Dimmitt.   27   III.  400  417    (1894);    Sec.    34,    Practice   act 

(lSfi2);    Riley   v.    Yost,   .^S    \V.   Va.  1907   (111.). 

21.1   n90.5);   Conmiercial  Ins.  On.  v.  caRjiey  v.  Yost,  58  W.  A^a.  214. 

Mehlman.  48  111.  .31.3,  .31.5    (1868).  oo  Harlow  v.   Boswell,    15    111.    58 

67  Lester  v.   People,  150   111.   408,  (1853). 


242  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

that  the  defendant  is  not  bound  by  law  to  answer  the  same,  and 
this  he  is  ready  to  verify;  wherefore  the  defendant  prays 
judgment  of  the  said  declaration  whether  he,  the  defendant, 
should  be  required  to  reply  thereto. 

And  the  defendant  further  demurs  specially  to  said  declara- 
tion, and  for  causes  of  demurrer  says  that  it  does  not  appear 
from  the  said  declaration  that  the  notice  alle^'ed  as  haying  been 
served  by  plaintiff  upon  said ,  which  said  declara- 
tion alleges  was  in  accordance  with  the  terms  of  said  alleged 
contract,  was  a  written  notice,  as  was  required  by  said  alleged 
contract. 

2.  That  said  declaration  does  not  allege  that  notice  was  given 
defendant  by  plaintiff  of  the  service  of  the  notice  required  by  the 
language  of  the  said  allej,'ed  contract. 

(Add  certificate  and  afiBdavit  disclaiming  delay) 

6 

And  the  defendant  by   ,  and   ,  his 

attorneys,  comes  and  defends  the  wrong  and  injury,  when,  etc., 
and  craves  oyer  of  the  supposed  writing  obligatory  or  promis- 
sory note  in  said  declaration  mentioned,  which  is  granted  by 
the  court,  and  the  same  is  read  to  him  in  words  and  figures  as 
follows:     (Set  forth  promissory  note  in  hucc  verba). 

And  also  craves  oyer  of  the  endorsement  on  said  note  in  said 
declaration  mentioned,  which  is  gninted  by  the  court,  and  the 
said  endorsement  is  thereupon  read  to  him  in  words  and  figures 
as  follows  :   (Insert  endorsement). 

Both  of  which  being  read  and  heard,  the  defendant  says  that 
the  said  declaration  and  the  matters  therein  contained  in  man- 
ner and  form  as  the  same  are  above  pleaded  and  set  forth,  are 
not  sufficient  in  law  for  the  plaintiff  to  maintain  his  aforesaid 
action,  and  that  he,  the  defendant,  is  not  bound  in  law  to  answer 
the  same  ;  and  this  he  is  ready  to  verify. 

Wherefore  for  want  of  sufficient  declaration  in  this  behalf  the 
defendant  prays  judgment,  and  that  he,  the  plaintiff,  may  be 
barred  from  maintaining  his  action,  etc.'*^ 

655  Craving  oyer,  order 

Now  comes  the  plaintiff  by  and   , 

her  attorneys,  and  also  now  on  this  day  comes  the  defendant  by 

and ,  his  attorneys,  and  craves  oyer 

of  the  promissory  note  mentioned  in  the  plaintiff's  declaration, 
and  also  craves  oyer  of  the  endorsement  on  said  promissory  note. 
And  thereupon  the  court  grants  oyer  of  both  said  promis- 
sory note  and  the  endorsement  thereon,  which  said  note  and 
endorsement  thereon  are  then  read  to  the  defendant  in  these 

ToKister  v.   Peters,   223   111.   607 
(1906). 


DEMURRER 


243 


words  and  figures:     (Set  forth  note  and  endorsement  in  haec 
verba). 

And  after  oyer  was  demanded  and  granted  the  defendant 
demurs  to  the  plaintiff's  declaration. 

DEMUEEEE  TO  PLEA 
656  Discontinuance 

An  action  is  discontinued  by  demurring  or  replying  to  a  plea 
which  purports  to,  and  in  fact  does,  answer  a  part  of  the  declara- 
tion, unless,  during  the  term  at  which  the  plea  is  filed,  the  plain- 
tiff takes  judgment,  as  by  nil  dicit,  on  the  unanswered  part  of 
the  declaration.'!  A  plaintiff  does  not  discontinue  his  action 
by  demurring  to  a  plea  which  professes  to  answer  the  whole  of 
the  declaration  but  which  in  fact  answers  a  part  alone-'^^  -^^ 
discontinuance  of  an  action  can  tnke  place  where  there  are  pleas 
answering  the  whole  cause  of  action. "^ 

657  Grounds  generally 

All  objections  tu  pleas  in  abatement  or  to  the  jurisdiction, 
whether  of  form  or  substance,  can  be  raised  by  general  de- 
murrerJ"* 

658  General  issue,  plea  amounting 

A  special  plea  which  alleges  matter  that  can  be  proved  under 
the  general  issue  or  a  plea  which  traverses  a  portion  of  the  facts 
the  plaintiff  is  bound  to  prove  to  establi.sh  a  prima  facie  case, 
amounts  to  the  general  issue  and  is  bad  on  special,  but  not  on 
general  demurrer."^ 

659  Immaterial  issue 

A  plea  which  presents  an  immaterial  issue  is  demurrable.'^® 

71  Warren  v.  Xexsen.  3  Scam.  .38,  31.3  (186-i);  Ogden  v.  Lucas,  48  111 
40  (1841);  Saffnrd  v.  Vail,  22  111.  492,  493  (1868);  Manny  v  Rixford 
327,  330  (18.19);  Dickerson  v.  Hen-  44  111.  129,  130  (1867);  Wadhams 
dryx,  88   111.  66,  69    (1878).  Swan,  109  111.  46,  54  (1884);  Cush- 

72  Snyder  v.  Gaither,  3  Scam.  91,  man  v.  Hayes,  46  111.  14.5,  155 
^-    ^i^^^^-  (1867);    Finch    Co.    v.    Zenith    Fur- 

'»  Snyder  v.  Gaither,  supra.  nnce  Co.,  24.1  111.  .l^^,  .191  a910). 

7«Willard    V.    Zohr,   215    111.    148,  76  Consolidated  Coal  Co.  v.  Peers, 

157    (1905).  166  111.   361,  3G5    (1897). 
7S  Knoehel  v.  Kircher,  33  111.  308 


244  ANNOTATED   FORMS  OF   PLEADING    AND    PRACTICE 

660  Insufficient  traverse 

A  plea  which  professes  to  answer  the  whole  cause  of  action 
but  which  ill  fact  only  answers  a  part,  is  bad  on  demurrer."' 

661  Same  defense,  practice 

A  plea  which  substantially  presents  the  same  defense  as  is 
presented  by  a  previous  plea,  is  not  denuirrable,  l)ut  it  consti- 
tutes ground  for  striking  it  from  the  tiles.'" 


662  District  of  Columbia 

Now  conic  the  plaintiffs  by  their  attorney,  

and  ,  say  that  the  pleas  of  the  de- 
fendant It)  the count  of  tlic  plaintilYs  declaration 

are  bad  in  substance. 

PlaintitT's  attorney. 

Marginal  Note: 

The  matters  of  law  intended  to  be  argued  at  the  hearing  of 
these  denuirrers  are  that  all  of  said  pleas  are  equivalent  to  the 
general  issue. 

663  Florida,  demurrer 

• 

Now  co)nes  the  plaintitf  in  the  above  entitled  cause  by 

his  attorney,  and  says  that   the  defendant's   (second) 

plea  filed  in  said  cause  is  bad  in  substance,  and  in  the  margin 
hereof  assigns  as  substantial  matters  of  law  intended  to  be 
argued  thereon. 

Plaintiff's  attorney. 
For  substantial  matters  of  law  intended  to  be  argued  and 
insisted  upon  before  the  court  upon  the  foregoing  demurrer,  the 
plaintiff  assigns  the  following:  1.  That  the  defendant's  plea 
neither  sets  forth  nor  avers  matter  which  would  constitute  a 
defense  to  the  plaintiff's  declaration  (Proceed  with  all  other 
assignments  in  a  similar  way). 

Plaintiff's  attorney. 

664  Florida,  affidavit  of  good  faith 

Before  me,  the  undersigned  authority,  personally  appeared 
,  who  being  by  me  first  duly  sAvorn  deposes  and 

77  Snyder  v.  Gaither,  3  Scam.  91  7s  Eingrhouse  v.  Keener,  63  111.  230, 

(1841).  235    (1872). 


DEMURRER  245 

says  that  he  is  the  plaintiff  in  the  above  entitled  cause,  and 
that  the  foregoing  demurrer  is  nut  interposed  for  the  purpose 
of  delaying  said  cause  or  any  proceeding  therein. 

,    ,  Plaintiff. 

Subscribed,  etc. 

665  Florida,  certificate  of  counsel 

.    I -the  undersigned,  of  counsel  for  the  plaintiff, 

in  tile  above  entitled  cause,  do  hereby  certify  that  in  my  opinion 
the  foregoing  demurrer  is  well  founded  in  point  of  law. 


Of  counsel  for  plaintiff. 


666  Illinois;  conclusion  and  prayer,  want  of 

(Precede  by  general  demurrer  and  add:)  And  the  plaintiff.  . 
show.,    to  the  court  here  the  following  cause  of  demurrer  to 

^•'^'  said   pleas  and  each  of  them,  that  is  to  say, 

tiiat  said  pleas  do  not  nor  does  either  of  them  conc-lude  with  a 
verification,  and  they  do  not.  nor  does  eitlier  of  them,  conclude 
with  a  prayer  for  judgment ;  and  tliey,  and  <'aeli  of  them,  are  in 
other  respects  unci-rtjiiii.  informal  and  insut!ieient.  (Add  cer- 
titicate  of  cause  and  altidavit  of  good  faith,  Sections  638  and 

667  Illinois;  general  grounds 

(Precede  by  general  demurrer)  And  the  plaintiffs  show 
to  tiie  court  liere  the  following  causes  of  demurrer  to  the  said 
plea  of  the  defendants  by  them  thirdly  above  pleaded,  that  is 
to  say,  that:  1.  The  said  plea  does  not  tender  any 'issue  of 
fact.  2.  The  said  plea  is  not  a  complete  defense.  3.  The 
said  plea  traverses  an  issue  of  law.  4.  The  said  plea,  thoush 
in  a  fonn  a  plea  in  bar,  sets  up  matter  in  abatement  and  is  too 
late  alter  the  general  i.ssue.  5.  The  .said  plea  does  not  traverse 
any  fact  alleged  in  said  count  of  plaintiff's  declaration.  6. 
Tiie  said  plea  though  in  form  a  special  plea  in  bar  does  not  con- 
fess and  avoid  and  does  not  give  color.  And  also  that  the  said 
plea  is  in  other  respects  uncertain,  informal  and  insufficient,  etc. 
(Add  certificate  of  cause  and  affidavit  of  good  faith) 

668  Illinois;  general  issue,  plea  amounting 

(Demur  generally  and  then  add  the  following  ground) 
And  for  a  special  ground  of  demurrer,  the  plaintiff.,  say.. 

that  said  plea  of  the  defendant.  .  amounts  to  the  general  issue. 

(Add  certificate  of  cause  and  affidavit  of  good  faith) 


246  ANNOTATED    FORMS  OV    tULkDlSii   AND    1'1C\C11C£ 

C69  Illinois;  insufficient  traverse 

(Precedi-  by  ^enerul  demurrtT.  and  add:)  And  the  pluintiiT 
shows  to  tlie  (.-ouri  lit-re  thf  follou  iug  causes  of  dfinurrtT  to  \hc 

said  plea  of  the  defendant  by  hiiii above  pleadeii, 

that  18  to  say,  that  the  said  plea  lussunies  to  answer  the  whole 
of  the  plaintiff's  amended  declaration,  while  in  law  it  fails  to 
answer  a  part  thereof,  to  wit :  the  third  and  fourth  counts  there- 
of;  and  also  that  the  said  plea  is  in  other  resjjecls  uncertain, 
inforinal  and  insurticient. 

That  the  said  plea  does  not  answer  the  first  and  second  counts 
of  the  declaration  in  that  said  counts  and  each  of  them  set  forth 
a  contract  fully  executed  by  the  plaintitT  within  a  year. 

That  the  said  plea  iloes  not  juiswer  the  first  and  second  counts 
of  the  declaration  in  that  said  counts  and  each  of  tlieni  si't  forth 
a  contract  which  was  capable  of  beinj^  performed  within  one 
year.     (Conchule  as  in  preceding  form) 

670  Maryland,  demurrer 

The  plaintiff ,  by  her  attorneys , 

demurs  to  the plea  of  the  defendant's  pleas  filed  by 

the  defendant  in  the  above  entitled  case  on    

19 .  . ,  and  says  that  said  plea  is  insufficient  in  law. 


Attornevs  for  plaintiff. 

6 


,   the   plaintifT  in    tiie  above 

entitled  case,  by and   ,  its  attorneys. 

demurs  to  the  first,  second  and  third  pleas,  and  each  of  them, 
filed  to  the  ileclaration  in  this  ease,  and  waiving;  all  objections 
that  might  be  made  to  said  pleas  on  the  ground  that  they,  or 
any  of  them,  are  equivalent  to  the  general  issue,  for  demurrer 
says:  that  said  pleas  and  each  of  them  are  bad  in  substance. 


Attorneys  for  plaintiff. 
671  Maryland,  setting  hearing 

Ordered  by  the  circuit  court  for   county  this 

....  day  of ,  19 .  . ,  that  the  above  demurrer  be  set 

down  for  hearing  on  the day  of ,  19 .  . ,  pro- 
vided a  copy  of  this  order  be  served  on  the  defendant  or  its 

attorneys  of  record  on  or  before  the day  of , 

19.. 


672  Withdrawing  plea 

Upon  the  filing  of  a  demurrer  to  a  bad  plea  the  defendant  may 
obtain  leave  to  withdraw  the  plea  and  to  plead  de   novo.     A 


DEMURRER  247 

failure  to  withdraw  a  bad  plea  amounts  to  an  election  to  abide 
by  its  validity  and  precludes  the  right  to  object  to  the  rendi- 
tion of  tinai  juagment."'-* 

DEMTERER  TO  REPLICATION 

673  District  of  Colujnbia 

Now  comes  the  defendant  and  says  that  the  plaintiff's  replica- 
tions to  the  defendant's plea  are  bad  in  substance. 


Attorney  for  defendant. 

Note:  The  principal  point  of  law  to  be  argued  at  the  hearing 
of  the  above  lieniurit-r  is  that  the  allegations  of  the  replications 
are  inconsistent  with  those  of  the  declaration.  {Jidd  notice  to 
call  up  demurrer,  and  service) 

674  Illinois;  general  demurrer 

And  as  to  the  tii-st  replication  of  said  plaintiff  to  said 

and pleas  of  this  defendant,  he  says  that  said  replica- 
lion  is  not  sulheient  in  law  as  to  either  of  said  pleas,  and  that 
tliis  defendant  is  not  bound  to  answer  the  same.  Wherefore,  for 
want  of  a  sullicieut  replication  in  this  behalf  said  defendant 
prays  judgment,  etc. 

Attorney  for  said  defendant. 

675  Illinois;  special,  departure 

(Demur  generally  and  then  aver  as  follows:) 

^\jid  the  defendant  shows  to  the  court  here  the  following 
cause  of  demurrer  to  said and repli- 
cations and  each  of  them  in  that  said  replications  and  each  of 
them  constitute  a  departure,  that  is  to  say,  that  the  plaintiff 

has  alleged  in  the   and   additional 

counts  of  its  declaration,  and  each  of  them,  that  it  contracted 

with  the to  sell  and  deliver  certain  pictures  to  said 

and  that  the  defendant, ,  guaran- 
teed the  perfornmnce.  of  said  contract  for  said   ; 

and  in  said    and    replications  and 

each  of  them,  the  plaintiff  alleges  that  the  defendant  was  doing 

business   under  the   name  of  the and   that   the 

defendant  was  said And  also  said 

and replications  and  each  of  them,  are  in  other 

respects  uncertain,  informal  and  insuflScient,  etc. 

T»  CTemson  ▼.  State  Bank  of  Illi- 
nois. 1  Scam.  45  (1832);  Conradi 
V.  Evans,  2  Scam.   185,  186   (1839). 


248  ANNOTATED   FORMS  OF   PLEADING    AND    PRACTICE 

676  Illinois;  special,  general  causes 

And  the  said  defendant,  by  ,  his  attorney,  says 

that  the  replication  of  the  said  phiintiff  to  tlio  said  second,  third, 
fourth  and  tiftli  pk-as  of  tlie  said  <h'frndant,  anil  tlu'  matters 
therein  contained,  in  manner  and  form  as  the  same  are  above 
pieacU'd  and  set  forth,  arc  nut  sufficient  in  law  for  the  said  plain- 
titr  to  have  or  maintain  his  aforesaid  action  theri'of  apainst  the 
said  defendant,  and  that  it,  the  siiid  defendant,  is  not  Ixjuml  by 
law  to  answer  the  Siime;  anil  this  the  said  defendant  is  ready  to 
verify;  wherefore,  by  reason  of  the  insuftieiency  of  Siiid  replica- 
tion in  this  l)clialf,  tin;  said  defendant  prays  judf^ment  if  the 
said  plaintitl'  ou^ht  to  have  and  maintain  his  aforesaid  action 
against  him,  etc. 

And  the  said  defendant,  according  to  the  form  of  the  statute 
in  such  case  made  and  provided,  states  and  shows  to  the  court 
for  special  causes  of  demurrer  the  following: 

1.  That  said  replieations,  and  each  of  them,  are  double;  i.  e., 
set  up  two  distinct  replies  to  the  allegations  to  the  defendant's 
pleas. 

2.  That  the  allegations  contained  in  said  replications,  and 
each  of  them,  are  not  responsive  to  the  allegations  of  said  de- 
fendant's pleas. 

3.  That   said   replications,   and   each   of   them,    are   double. 

4.  And  also  for  that  the  said  replications  are  in  other  respcets 
uncertain,  informal  and  insunicient,  etc. 


Attorney  for  said  defendant. 

JOINDER 
677  Florida,  form 

Now  comes  the  plaintilT  in   the  above  entitled  action  at  law 
and  says  that  the  declaration  is  good  in  sul)stance. 


Plaintiff's  attorney. 

Notice 

To 

Defendant 's  attorney. 

Take  notice  that  I  will  call  up  for  hearing , 

19.  .,  before  the  honorable ,  judge  at 

Florida,  or  wherever  else  he  may  then  be,  the 

demurrer  interposed  in  said  cause  to  the  plaintiff's  declaration. 
Dated,  etc. 


Plaintiff's  attorney. 

Notice  of  the  above  received  by  me  this day  of .  . 

,19.. 


Defendant's  attorney. 


DEMURRER  249 

678  Illinois,  form 

And  the  plaintili"  says,  that  the  said  declaration  and  the  mat- 
ters therein  contained,  in  manner  and  form  as  the  same  are 
above  set  forth,  are  sufficient  in  law  for  him  to  maintain  his 
aforesaid  action;  and  he  is  ready  to  verify  the  same,  as  the 
court  shall  direct ;  wherefore,  inasmuch  as  the  defendant  lias 
not  denied  the  said  declaration  tiie  plaintiif  prays  judgment, 
and  his  damages,  etc..  to  be  adjudged  to  him,  etc. 


Attorney  for  plaintiff. 

679  Michig^an,  necessity  of  joinder 

A  judgment  on  demurrer  may  be  rendered  without  a  joinder 
therein. **'J  Under  fonner  Michigan  practice,  joinder  in  a  de- 
murrer within  the  time  fixed  by  rule  was  essential  whether  the 
demurrer  was  frivolous  or  not.  And  by  .so  joining  it  was  not 
un  admission  tiiat  the  demurrer  was  frivolous.^i  But  now,  no 
joinder  in  a  demurrer  is  necessary.**- 

680  Michigan,  form 

And  the  said by its  attorney  says 

that  the  said  declai'ation  is  sufficient  in  law. 

Plaintiff's  attorney. 

681  Virginia,  form 

The  defendant  (or  plaintiff)  says  that  the  (Name  pleading) 
is  not  (or  is,)  sufficient  in  law.'*-'' 

CONSTRUCTION 

682  Nature  and  effect 

.\  demurrer  questions  llie  sufficiency  of  only  such  matters  as 
appear  upon  the  record  itself,  or  of  such  matters  as  are  neces- 
sarily implied  by  law.*^  In  its  effect,  a  demurrer  reaches  back 
through  the  whole  record  and  attaches  to  the  first  substantial 
defect  in  tiie  pleadings.*^ 

so  Mix    V.    rhandler,    44    Til.    174  «<  Xorf oik  v.  People,  43  111.  9,  11 

(1P67).  (1867). 

81  WvckolT,  Shamans  &  Bene(li<'t  v.  ss  People    v.    Central    Union    Tel. 

Bishor)".  0«  Mich.  .'^.=52.  3.5.5  (1894).  Co.,  232  111.  260,  275   (1908). 

"2  Circuit  ooiirt  rule  5   (d). 

"Sec.  3271,  Ann,  Code  1904 
(Va.). 


250  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

683  Admissions 

Facts  well  pleaded  are  admitted  by  a  demurrer.  Conclusions 
of  law  stated  by  the  pleader,  and  the  construction  placed  by 
him  upon  statutes  are  not  admitted  by  demurrer.'*"  A  demurrer 
admits  the  facts  to  be  true  as  pleaded.^T  It  does  not  admit  facts 
which  are  improperly  pleaded.^^  A  party  admits  the  proper 
filing  of  a  plea  by  demurring  to  it  instead  of  moving  to  strike 
it  out.89 

684  Inferences 

On  demurrer  the  intendments  are  against  the  pleader,  and 
mere  inferences,  or  implications  from  facts,  stated  cannot  be 
indulged  in  his  favor.*^" 

CARRYING  BACK  DEMURRER 

685  Rule 

In  the  absence  of  a  plea  of  the  general  issue,  a  demurrer  opens 
the  entire  record  and  may  be  carried  and  sustained  to  the  first 
defective  pleading:  in  matter  of  sul)st<ince,  but  not  in  matter 
of  mere  form,  even  where  the  pleading  demurred  to  is  also  de- 
fective.^i  A  demurrer  will  not  be  carried  back  to  a  pleading 
which  does  not  profess  to  answer  another  pleading  and  with 
which  it  has  no  connection,  as  pleas  in  abatement  and  pleadings 
involving  different  and  unconnected  matter  of  defense;  02  nor 
to  a  pleading  which  has  been  held  good  on  a  previous  demurrer 
and  the  party  has  pleaded  over,  because  pleading  and  demurring 
to  the  same  matter  is  not  permissible."^     The  trial  court  may, 

scMcPhail  v.  People,  160  111.  77,  Co.    v.    Carson,    1(19    111.    247.    255 

83      (1896);     Cerveny     v.     Chicago  (1897);    Illinois    Fire    Ins.    Co.    v. 

Daily   News   Co.,    139   111.    345,   353  Stanton,    57    111.    354,   359    (1870); 

(1891);    People    v.    Busse,    248    111.  Chestnut    v.    Chestnut,    77    111.    346, 

11,   17    (1910).  348    (1875);    People   v.   Crabb,    156 

"Bailey   v.    Cowles,    86    Dl.    333,  III.  155,  1(6   (1895). 

335   (1877).  »2Ryan    v.    Mav,    14    111.    49,    51 

ssLindley   v.   Miller,   67   111.   244,  (1852);    Hunter    v.    Bilyeu,    39    111. 

249   (1873).  367,  370   (1866). 

89Juilliard  &  Co.  v.  May,  130  Dl.  o3  Bills  v.  Stanton.  69  111.  51,  53 

87,  96    (1889).  (1873);    Scott    (Town)    v.   Artman, 

90  Fairbank  Co.  V.  Bahre,  213  m.  237  111.  394,  399  (1908);  Heim- 
636.  638    (1905).  berp:er  v.  Elliot  Frog  &  Switch  Co., 

91  Peoria  &  Oquawka  R.  Co.  v.  245  111.  448.  452  (1910);  Culver  v. 
Neill,  16  111.  269.  270  (1855);  Hed-  Third  National  Bank,  64  111.  528, 
rick    V.    People,    221    111.    374,    377  532   (1871). 

(1906);  Louisville,  N.  A.  &  C.  Ry. 


DEMURRER 


251 

however,  dismiss  the  suit,  and  thereby,  in  effect,  reverse  its 
former  ruling,  where  a  pleading  to  which  a  demurrer  has  been 
overruled  is  so  defective  that  a  motion  in  arrest  of  judgment 
would  be  sustained,  or  the  defect  is  such  that  it  could  be  taken 
advantage  of  on  crror.^^  A  defendant  is  not  precluded  from 
interposing  the  defense  of  the  statute  of  limitations  by  the  over- 
ruling of  a  general  demurrer  to  a  declaration  which  improperly 
sets  up  matter  in  avoidance  of  the  statute.®*^ 

686  Application  to  declaration 

A  dumurrer  should  be  carried  back  to  a  declaration  which  is 
so  defective  that  a  judgment  would  be  arrested."''  A  demurrer 
to  a  plea  will  not  be  carried  back  to  a  declaration  after  a  de- 
murrer to  it  has  been  overruled  and  the  general  issue  has  been 
pleaded."^  Nor  will  a  demurrer  filed  at  any  subsequent  stage 
of  the  proceeding  be  carried  back  over  the  general  issue  and 
sustained  to  the  declaration,  on  the  principle  that  a  party  will 
not  be  permitted  to  demur  and  to  plead  at  the  same  time  to  the 
same  matter."**  But  a  demurrer  may  be  carried  back  over  the 
general  issue  to  a  declaration  which  discloses  on  its  face  that 
the  phiintiff  has  no  cause  of  action;  thi-  plea,  in  such  case  is 
regarded  as  no  plea  at  all.oo  As  a  demuner  to  a  plea  will  not, 
in  some  instances,  be  carried  back  ami  sustained  to  a  declara- 
tion over  the  general  issue,  it  is  the  practice  to  request  leave  to 
withdraw  the  general  issue  at  the  same  time  that  a  motion  is 
made  to  have  the  demurrer  carried  back  to  the  declaration.  If 
the  declaration  is  good,  the  motion  to  withdraw  the  general  issue 
should  be  denied;  if  the  declaration  is  bad  the  motion  should 
be  granted.  Withdrawing  a  plea  also  withdraws  a  demurrer 
to  it  and  prevents  the  carrying  back  of  the  demurrer  to  the 
declaration. ^*'<' 


9*  People  V.  Spring  Valley  (City),  319   (3861);  Compton  v.  People,  86 

129  111.169,178(1889).  111.     176,     178     (1877);     Mount     v. 

»5  Lesher  V.  United  States  Fidelity  Hunter,    58    111.    246,    248     (1871); 

&   Guaranty   Co.,    239    111.    .502,  508  Schofield  v.  Settley,  31  111.  515.  517 

(1909).  (1863). 

»«  McFadden    v.    Fortier,    20    111.  »» Haynes  v.    Lucas,    50    111.    436, 

509.    515    (1858).  439   (1869). 

07  Brawner  v.  Lomai,  23  TU.  496  loo  George  v.  Bischoflf,  68  111.  236, 

(1S«^)-  238  (1873). 

»8  Reeves  v.   Fomian,  26  111.  313, 


252  ANNOTATED   FORMS   OF   TLEADING    AND   PRACTICE 

687  Application  to  information 

A  demurrer  to  a  plea  may  reach  defects  in  an  information  in 
the  nature  of  a  quo  ivarranto.^^^ 

688  Application  to  plea 

A  demurrer  to  a  defective  replication  will  be  carried  back 
to  a  defective  plea.  But  it  will  not  be  carried  back  to  a  plea 
which  has  been  held  good  on  demurrer,  because  by  pleading 
over  the  sufficiency  of  the  plea  is  admitted. ^'^- 

689  Motion,  necessity 

A  demurrer  will  not  be  carried  back  to  a  pleading  without  a 
motion  made  for  that  purpose.^"-' 

JUDGMENT 

690  Necessity  of  judgment 

Questions  raised  by  demurrer  should  be  disposed  of  before 
trial  on  issues  of  fact  and  final  judgment.^""* 

691  Confessing-  and  sustaining  demurrer,  order 

This  day  comes  the  defendant  to  this  suit  by  its  attorney  and 
confesses  the  plaintiff's  demurrer  filed  herein  to  the  defend- 
ant's plea  filed  herein,  and  on  motion  of  the  defendant's  at- 
torney it  is  ordered  that  leave  be  and  is  hereby  given  the 
defendant  to  file  an  amended  plea  herein  instanter  and  that 
the  plaintiff's  demurrer  to  the  defendant's  original  plea 
stand  as  demurrer  to  said  amended  plea  as  aforesaid;  and 
the  said  cause  coming  on  to  be  heard  upon  the  said  demurrer 
to  the  defendant's  amended  plea  filed  herein,  after  argument 
of  counsel  and  due  deliberation  by  the  court,  said  demurrer 
is  sustained  and  it  is  ordered  that  leave  be  and  is  hereby  given 

the   defendant   to  file   amended  pleas  herein   within    

days  from  this  date. 

101  Distilling  &  Cattle  Feeding  Co.  los  Heimberger  v.  Elliot  Frog  & 
V.  People,  156  111.  448,  485   (1895).  Switch     Co.,     245     111.    452;     Scott 

102  Sehalucky  v.  Field,  124  111.  617,  (Town)  v.  Artman,  237  111.  394,  399 
620  (1888;  ;  Illinois  Fire  Ins.  Co.  v.  (1908). 

Stanton,  57  111.   359;   Eyan  v.  Van-  io4  Waterbury     v.     McMillan,     46 

landingham,  25  111.  128,  131  (1860)  ;       Miss.  635,  639  (1872). 
Fish   V.    Farwell,    160   111.    236,    241 
(1896). 


DEMURRER  253 

692  Sustaining  demurrer,  generally,  appeal 

An  order  sustaining  a  demurrer  is  not  final  and  appealable 
although  it  recites  that  the  plaintiff  or  petitioner  elects  to  abide 
by  his  declaration  or  petition  and  he  declines  to  plead  further 
and  a  judgment  for  costs  should  be  entered  against  him,  when 
there  is  nothing  in  the  order  that  is  in  the  nature  of  a  deter- 
mination of  the  rights  of  the  parties.^^^  A  judgment  sustain- 
ing a  general  demurrer  to  a  declaration  and  awarding  a  defend- 
ant execution  for  costs  and  charges  expended  "in  this  behalf" 
is  not  final  and  appealable,  because  such  a  judgment  neither 
adjudges  that  the  plaintiff  take  nothing  by  the  writ,  or  that 
the  defendant  go  hence  without  day.^"^ 

Upon  sustaining  a  demurrer  to  a  declaration,  in  whole  or  in 
part,  there  should  be  an  order  allowing  the  plaintiff  time  to 
amend  his  dechirntion,  if  he  so  chooses.^^^  The  mere  omission 
to  enter  a  formal  judgment  of  respondeat  ouster  is  not  preju- 
dicial to  a  party  who  has  had  an  opportunity  to  plead  over.^*^® 

A  final  judgment  may  be  rendered  for  the  plaintiff  upon  over- 
ruling a  demurrer  to  a  declaration  or  upon  sustaining  a  demur- 
rer to  a  plea  where  the  defendant  fails  to  withdraw  the  de- 
murrer or  to  apply  for  leave  to  answer  over.^*^^  The  failure 
of  a  defendant  to  ask  leave  to  withdraw  his  demurrer  after  it 
has  been- overruled  and  to  plead  is  equivalent  to  an  election 
to  abide  by  it,  and  authorizes  a  final  judgment  against  him,  or 
an  inquest  to  a  jury  to  assess  the  damages  when  they  do  not  rest 
in  computation.^^*' 

On  a  demurrer  to  a  bad  plea  the  judgment  may  be  inter- 
locutory or  final,  according  to  the  nature  of  the  action.  The 
judgment  may  be  final  where  the  defendant  elects  to  stand  by  a 
bad  plea  by  failing  to  move  for  its  withdrawal  and  for  leave  to 
plead  de  woro.^"  Final  judgment  against  the  defendant  may 
be  rendered  on  a  demurrer  to  a  plea  in  bar  which  pleads  matter 
in  abatement,  where  the  defendant  elects  to  stand  by  the  plea.^^^ 

105  People  V.  Board  of  Education,  Scam.   447,   451    (1838);    Bradshaw 

236  111.   154,  155,   156    (1908).  v.  Morehouse.  1  Gilm.  396. 

100  Chicago  Portrait  Co.  v.  Chicago  no  Weatherford     v.     Fishback,     3 

Crayon   Co.,   217   111.   200,   201,   202  Scam.    170,    174    (1841);    Bates    v. 

(1905).  Williams,  43  111.  494  (1867). 

107  Baylor  v.  Baltimore  &  Ohio  R.  m  Clemson  v.  State  Bank  of  Illi- 
Co.,  9  W.  Va.  270,  279   (1876).  nois,  1  Scam.  46;  Conradi  v.  Evans, 

108  Bradshaw  v.  Morehouse,  1  Gilm.  2  Scam.  185,  186  (1839). 

396;    Haldeman   v.   Starrett,   23    111.  112  Pitts  Sons'   Mfg.   Co.  v.  Com- 

393   (1860).  mercial  National  Bank,  121  111.  582, 

109  Godfrey      v.      Buckmaster,      1      588   (1887). 


254  ANNOTATED   FORMS   OF    I*LE.\DING    AND   PRACTICE 

693  Sustaining  demurrer,  judgment  (Illinois) 

On  this  day  came  on  for  hearing  the  demurrers  filed  herein 

by  and  by ,  executors,  etc.,  to  the 

amended  petition  tiled  herein,  and,  after  hearing  counsel,  it  is 
ordered  that  said  demurrers  be  sustained.  And  thereupon  peti- 
tioner elected  to  al)ide  by  its  petition  and  on  respondents'  motion 
said  petition  was  ordered  dismissetl ;  to  wliich  orders  petitioner 
then  and  there  duly  excepted.  Thereupon  petitioner  prayed 
an  appeal,  which  was  allowed.     On  motion  of  petitioner,  it  was 

allowed   days  from  this  date  in  wiiieii  to  i)repare  and 

present  a  bill  of  exceptions. 

Dated,  etc. 

Enter , 

Judge. 

(Michigan) 

In  this  cause,  the  demurrer  of  the  said  defendant , 

to  the  tleehiratit)n  of  the  said  plaintifT.  having  been  duly  broii^'lit 
on  for  ar^'iiiiifnt,  and  all  and  singular  being  sei'u  and  fully 
understood  by  the  court  here,  and  it  appearing,  after  mature 
deliberation  thereon,  that  the  said  declaration  and  the  matters 
therein  contain(>(l  are  not  sufFieient  by  law  for  the  said  plaintiff 

to  have  and  maint^iin  his  saiil  action  against  the  said   

....  and  that  the  saiil  plaintiff  ougiit  not  to  recover  agaimst  the 
said  his  allc'ed  damages;  tiierefore,  it  is  con- 
sidered that   the  said  plaintiff  take  notliing   by   his  suit;   and 

that  the  said  defendant,    ,  do  go  thereof  without 

day;  and  it  is  further  considered  that  the  said  defendant   .... 

do  recover  against  the  said  plaintifT  its  costs  and 

charges  by  it  about  its  defense  in  this  behalf  expended,  to  be 
taxed,  and  that  the  said  defendant  have  execu- 
tion therefor.     It  is  further  ordered  that  the  plaintiff  have  until 

day  of    ,  to  move  for  a  new  trial  or  to 

settle  a  bill  of  exceptions. 


Judge. 

(West  Virginia) 

This  day  came  again  the  said ,  guardian  as  afore- 
said, and  presented  to  the  court  his  petition  verified  by  his  afM'la- 
vit  thereo  appended,  together  with  all  of  the  papers  and  exhibits 
mentioned  in,  filed  with,  and  made  part  of  said  petition  on  a 
former  day  of  the  present  term  of  this  court ;  and  it  appearing  to 

the  satisfaction  of  the  court  that  said and 

....  and  each  of  them  are  infants,  under  the  age  of  twenty-one 
years,  on  motion  of  the  parties  in  interest  in  said  proceeding,  said 

,  who  is  an  adult,  and  the  mother  of  said  three 

infants,  was  by  the  court  appointed  as  guardian  ad  Wrm  for 
said  , and  ,  and  for 


DEMURRER  255 

each  of  them.     Whereupon,  said    accepted  said 

appointment  as  such  guardian  ad  litem  for  said  infants  and 
tendered  her  demurrer  to  the  said  petition;  which  demurrer, 
on  her  motion,  was  filed  in  said  cause,  and  in  which  demurrer 

the  said   ,  guardian  as  aforesaid,  joined,  and  the 

same  was  set  down  for  argument.  And  the  said  cause  now 
coming  on  to  be  heard  upon  the  notice  in  writing  by  said  .... 

,  guardian,  to  the  said  defendants,  docketed  on  the  first 

day  of  the  present  term;  upon  the  petition  and  the  several  and 
separate  exhibits  and  papers,  mentioned  therein,  and  filed  there- 
with, as  part  thereof;  upon  the  said  demurrer,  and  joinder 
therein  as  aforesaid ;  and  upon  the  said  former  orders  made  in 
8<iid  cause,  was  argued  by  counsel:  on  mature  consideration  of 
all  of  which,  the  court  is  of  the  opinion  that  said  demurrer  is 
well  taken. 

It  is  therefore  adjudged,  ordered  and  decreed  that  the  said 
demurrer  to  said  petition  be,  and  the  same  is  hereby  sustained, 

and  the  said  ,  guardian  as  aforesaid,  not  desiring 

to  amend  his  said  petition,  altlioiigh  lie  was  granted  leave  by 
the  court  to  do  so,  if  he  so  desired;  it  is  therefore  further 
adjudged,  ordered  and  decreed  that  the  said  petition  and  pro- 
ceeding aforesaid  be,  and  the  same  is  hereby  dismissed  and 
stricken  from  the  docket. 


Petition  for  appeal 

To  the  honorable  judges  of  the  Supreme  Court  of  Appeals  of 
the  state  of  West  Virginia: 

The  petition  of  the ,  a  corporation  of  said  state, 

respectfully  shows  that  it  is  aggrieved  by  a  judgiuent  or  order 

entered  by  the  circuit  court  of county  on  the 

day  of ,  19.  .,  in  the  above  entitled  proceed- 
ing then  therein  pending,  sustaining  a  demurrer  of  the  defend- 
ants to  your  petitioner's  petition  in  said  proceeding,  and  dismiss- 
ing the  same ;  and  to  the  end  that  it  may  be  relieved  of  such 
grievance  it  presents  to  this  honorable  court  this,  its  petition,  for 
a  writ  of  error  and  supersedeas  to  the  judgment  or  order  com- 
plained of.  accompanied  by  a  transcript  of  the  record  of  the  said 
condemnation  proceedings. 

Petitioner  respectfully  submits  that  the  said  circuit  court  of 

county  erred  in  sustaining  said  demurrer  to  said 

petition  because,  under  the  laws  of  said  state  of  West  Vir- 
ginia, the  averments  of  the  said  petition  present  a  proper  case 
for  the  exercise  of  the  right  of  eminent  domain,  and  the  con- 
demnation for  the  petitioner's  use  set  forth  in  said  petition,  of 
the  strips  of  land  therein  described. 

Your  petitioner  therefore  prays  that  a  writ   of  error   and 
supersedeas  to  the  judjrment  or  order  complained  of  may  be 


256  ANNOTATED    FORMS   Or    PLKADINO    AND    I'lCACTlCE 

awarded,  and  that  it  may  be  reviewed  and  reversed.  And  as  in 
duty  bound,  your  petitioner  will  ever  i»ray,  etc. 

By';:;;;;::::;::::::::::::: 

Attorneys. 

I,   ,  an  attorney  practicing  in  the  Supreme 

Court  of  Appeals  of  We.st  \'irginia,  am  of  opinion  that  the  mat- 
ters set  forth  in  the  foregoing  i)etition  and  accompanying 
record  are  proper  to  be  reviewed. 

Dated 

Writ  of  error   and  supersedeas   allowed    in   lourt    . 

..,  19.. 
Bond  $ 

694  Overruling  demurrer  to  declaration,  practice 

After  a  demurrer  to  tln'  derlm-alion  has  been  ovorniled  a 
court  may  refuse,  in  ils  di-seretion.  to  i)ermit  the  defendant  to 
plead,  unless  he  shall  show  a  meritorious  defense,  where  the 
plaintiff  has  filed  an  afiidavit  of  amount  due  with  his  declara- 
tion.^^^ 

695  Overruling  demurrer  to  declaration,  judgments  (Florida) 

This  cause  was  submitted  upon  demurrer  to  the  declaration 
and  upon  consideration  thereof  it  is  ailjudged  that  the  demurrer 
be  overruled  and  that  the  defendant  plead  to  said  declaration 
on  or  before  the  rule  day  in next. 

Done  and  ordered   in  vacation   at    ,   Florida, 

this day  of ,  19 . . 


Judge. 


(Michigan) 


In  this  cause,  the  demurrer  of  the  said,    , 

to  the  declaration  of  the  said    having  been  duly 

brought  on  for  argument,  and  all  and  singular  the  premises 
being  seen  and  understood,  and  it  appearing  to  the  court  now 
here,  after  mature  deliberation  thereon,  that  the  said  declaration 
and  the  matters  therein  contained  are  sufficient  in  law  for  the 

said    to  have  and  maintain  his  aforesaid  action 

against  the  said, 

Therefore,  on  motion  of    ,  attorneys  for  the 

said ,  it  is  ordered  and  adjudged  by  the  said  court 

113  McCord  V.  Crooker,  83  111.  556, 
560  (1876);  Sec.  55,  Practice  act 
1907   (111.). 


DEMURRER  257 

that  the  said  demurrer  he  and  the  same  hereby  is  overruled,  with 
costs  in  favor  of  said  plaintiff  to  be  taxed. 

It  is  further  ordered  that  the  said  defendant  have 

days  from  this  date  in  which  to  plead  to  said  declaration. 

696  Overruling  demurrer  to  plea,  nature  and  effect 

An  order  overruling  a  demurrer  to  a  plea,  where  the  plaintiff 
abides  by  his  demurrer,  amounts  to  a  judgment  in  bar  of  the 
cause  of  action  set  up  in  the  count  to  which  the  plea  is  an 
answer,  and  it  disposes  of  all  of  the  issues  that  are  raised  by 
the  count  and  the  plea  in  so  far  as  the  trial  court  is  concerned.^i^ 
No  final  judgment  in  bar  of  the  entire  action  can  be  rendered 
upon  overruling  a  demurrer  to  a  special  plea  which  answers  a 
part  of  the  declaration  alone,  where  there  are  other  pleas  to 
the  rest  of  the  declaration. ^^^ 

697  Withdrawing  demurrer,  costs 

Upon  the  withdrawal  of  the  demurrer  to  a  plea  and  the  fail- 
ure to  reply,  a  defendant  is  entitled  to  judgment  for  costs 
against  the  plaintiff.^ ^'^ 

luMcCormick  v.  Tate,  20  III.  334,  no  Hunter  v.  Bilyeu,  39  lU.  370. 

337  (1858). 

115  Armstrong    v.    Welch,    30    111. 
337. 


C  II  A  P  T  i:  R   X  \'  I  I 


DEFENSES  AND  PLEAS  IN   UAR 


IN  GENERAL 


§§ 

698  Pleas,  classes  and  naming 

699  Pica  in  bur  defined 

700  Special  plea,  delined 

701  Special  plea,  scope 

702  Special    pleas    amounting    to 

general  issue,  test 

703  Traverse,   nature   and   scope; 

admission 

704  Traverse,   conclusions   of   law 

705  Traverse,  immaterial  matter 

706  Traverse,  varying  written  in- 

strument 

707  Judgment,   estoppel 

DEFENSES 

708  Accord    and    satisfaction    de- 

fined 

709  Accord  and  satisfaction,  when 

710  Accord       and       satisfaction; 

pleading,  proof 

711  Accord  and  satisfaction;  plea, 

requisites 

712  Adverse  possession,  proof 

713  Agreement    to    dismiss,    prac- 

tice 

714  Alteration,  pleading 

715  Appropriations,  constitutional 

power 

716  Attorney's  fees,  motion 

717  Carrier's  liability;   limitation, 

proof 

718  Cause  of  action,  practice 

719  Conditions    precedent;     prac- 

tice, proof 

720  Conditions  subsequent,  plead- 

ing 

721  Consideration,  failure  of 

722  Copy     of     instrument     sued 

upon 

258 


723  Corporate  existence;  general 
Issue,    admission 

724  Cumbering  record,  motion 
and  order 

725  Defective  return,  notice 

726  Defend?nt'8  capacity,  admis- 
sion 

727  Estoppel,  pleading 

728  Foreign  corporations*  con- 
tracts 

729  Foreign  corporations*  non- 
compliance;   plea,  requisites 

730  Foreign  corporations*  non- 
complians;  plea  and  repli- 
cation 

731  Foreign  judgment 

732  Foreign  statute 

733  Fraud,  burden  of  proof 

734  Fraud,  pleading 

735  Fraud;    plea,  nature 

736  Fraud;   plea,  requisites 

737  Fraud;    notice,    proof 

738  Improper  matter  in  declara- 
tion, motion  to  strike 

739  Indebtedness  not  due,  oyer 

740  Jury,   right 

741  Jury;  empaneling,  notice 

742  Misnomer   of   defendant 

743  Mutuality,   want  of 

744  Xon  est  factum,  nature  and 
effect 

745  Non  est  factum,  proof 

746  Xon  est  factum,  pleas 

747  Nul  ticl  corporation,  plaintiff, 
nature  and  scope 

748  Xul  ticl  corporation,  plaintiff, 
proof 

749  Xul  ticl  corporation,  plea 

750  Nul  tiel  record,  nature 


DEFENSES   AND   PLEAS   IN   BAB 


259 


§1 

751  Nul  tiel  record;  evidence,  cov- 

erture 

752  Nul  tiel  record,  plea  and  rep- 

lication 

753  Nul     tiel     record,     judgment, 

nature 

754  Ordinance;    collateral    attack, 

burden  of  proof 

755  Ordinance;     validity,    reason- 

ableness, burden  of  proof 

756  Ordinance,    pleading 

757  Organization,     collateral     at- 

tack 

758  Oyer,  motions  and  order 

759  Partnership,  plea 

760  Payment,  nature  and  scope 

761  Payment,  pleading 

762  Payment,  pleas 

763  Performance,  estoppel 

764  Puis      darrein      continuance ; 

pleading,  time 

765  Puis      darrein      continuance, 

plea;    requisites 

766  Puis      darrein      continuance, 

practice 

767  Recoupment  defined 

768  Recoupment  distinguisiied 

769  Recoupment;     claims,    nature 

770  Recoupment,  pleading 

771  Recoupment,  judgment 

772  Release    and   discharge,    prac- 

tice 

773  Release  of  surety,  pleading 

774  Res  judicata,  doctrine  and  ap- 

plication 

775  Res  judicata,  burden  of  proof 

776  Res  judicata  ;  pleading,  waiver 

777  Res     judicata;     estoppel     by 

judgment,  generally 

778  Res     judicata;     estoppel     by 

judgment,     aflBrmance     and 
reversal 

779  Res     judicata;     estoppel     by 

judgment,  default  judgment 

780  Res     jtidicata;     estoppel     by 

judgment,  dismissal  of  for- 
mer proceeding 


781  Res     judicata;     estoppel     by 

judgment,    erroneous    judg- 
ment 

782  Res     judicata;     estoppel     by 

judgment,  judgment  against 
partner 

783  Res     judicata;     estoppel     by 

judgment,  tax  judgment 

784  Res     judicata;     estoppel     by 

judgment,  test  case 

785  Res     judicata;     estoppel     by 

judgment,  pleading 

786  Res     judicata;     estoppel     by 

judgment,  plea,  requisites 

787  Res     judicata;     estoppel     by 

judgment,  pleas 

788  Res     judicata;     estoppel     by 

judgment,  proof 

789  Res     judicata;     estoppel     by 

verdict 

790  Res  judicata;  estoppel  against 

estoppel 

791  Set-off  defined 

792  Set-off,  law  governing 

793  Set-off;   demands,  nature 

794  Set-off;    demands,   judgments, 

appeal 

795  Set-off;    demands,   judgments, 

domestic   and    foreign 

796  Set-off;       demands,      unliqui- 

dated   damages 

797  Set-off.  nominal  plaintiff 

798  Set-off,  pendency  of  action  or 

appeal 

799  Set-off,  pleading  and  practice 

800  Set-off;  plea,  requisites 

801  Set-off;   replication,  requisites 

802  Set-off,  withdrawal 

803  Set-off.  proof 

804  Set-off,  judgment 

805  Stare  decisis 

806  Stated    accounts,    taxing    dis- 

tricts 

807  Statute  of  limitations,  waiver 

808  Statute    of    limitations,    bur- 

den of  proof 


260 


ANNOTATED    FORMS   OF   PLEADING    AND    PRACTICE 


809  Statute  of  limitations;    plead- 

ing, time 

810  Statute  of  limitations;   plead- 

ing,  generally 

811  Statute  of  limitations;   plead- 

ing, municipal  corporations 

812  Statute  of  limitations;    plead- 

ing, amended  and  addition- 
al counts 

813  Statute    of    limitations;    plea, 

requisites,  traverse 

814  Statute    of    limitations;     plea 

requisites,  period  of  limita- 
tion 

815  Statute   of   limitations;    plea, 

requisites,     statute,     excep- 
tion 

816  Statute    of    limitations;    plea. 

requisites,       rejection       of 
claim,  notice 

817  Statute    of    limitations;    plea 

requisites,      foreign      judg- 
ment, residence 

818  Statute    of    limitations;    plea, 

requisites,    amended    decla- 
ration 

819  Statute   of   limitations,   repli- 

cation 

820  Statutes,   persons  objecting 

821  Statutes;  objections,  class  leg- 

islation 

822  Statutes;     objections,     consti- 

tutionality, practice 

823  Statutes;    objections,  common 

law  rights  and  powers,  con- 
tinuation 

824  Statutes;     objections,    direct- 

ory or  mandatory,  test 

825  Statutes;     objections,    legisla- 

tive power 

826  Statutes;   objections,  title 

827  Statutes;      objections,      title, 

plea 

828  Statutes;  construction,  court's 

duty,  scope 

829  Statutes;     construction,     pre- 

sumption 

830  Statutes;     construction,    con- 

temporaneous 


831  Statutes;     construction,     for- 

eign laws 

832  Statutes;   construction,  single 

and  plural 

833  Tender,  unliquidated  damages 

834  Tender,  amount 

835  Tender;        counting       money, 

waiver 

836  Tender;  admission,  scope 

837  Tender,  pleading 

838  Tender,  plea 

839  Tender;    replication,    non   est 

factum 
810  Tender;    replication,   payment 

841  Tender;    replication,  payment 

of  taxes 

842  Tender;     replication,     Incum- 

brance 

843  Tender,  replication 

844  Tender;    notice    with    general 

Issue 

845  Tender;  acceptance  and  waiv- 

er 

846  Title,  landlord  and  tenant 

847  Title;     vendor     and     vendee, 

pleading 

848  Title;   plea,  requisites 

849  Ultra  vires 

850  Unproved  counts,  practice 

851  Usury,  generally 

852  Usury,  burden  of  proof 

853  Usury;  plea,  requisites 

854  Usury,  notice  with  general  is- 

sue 

855  Validity  of  contract,  pleading 

856  Voluntary     assignment;     dis- 

continuance,  replication 

GENEEAL  ISSUE 

857  General  issue  defined 

858  General  issue,  constructive 

859  General  issue,  waiver 

860  General     issue;     nature    and 

scope,   generally 

861  Estoppel  in  pais 

862  Fraud 

863  Letters  of  administration 

864  Misjoinder  and  nonjoinder  of 

plaintiffs 


DEFENSES   AND   PLEAS   IX   BAR 


261 


5§ 

865  Plaintiff's    character    and    ca- 

pacity 

866  Statute  of  frauds 

867  Pleading  and  demurring 

868  Plea  of  general  issue 

NOTICE   UNDER  GENERAL 
ISSUE 

869  Notice,  nature  and  effect 

870  Notice,   scope,   Michigan 

871  Notice,  admission 

872  Notice;  general  form 

BILL    OF   PARTICULARS 

873  Nature  and  scope 

874  Application,    demand    or    mo- 

tion, nature 

875  Requisites 

876  Amendment 

GROUNDS   OF   DEFENSE 

877  Defenses;    limitation,    waiver 

PRACTICE 

878  Pleading,  time 

879  Extension  of  time,  motion 

880  Several  pleas 

881  Additional  pleas 

882  Abandonment  of  pleas 

883  Striking  pleas 

884  Repleader 

COMMENCEMENT     AND 
CONCLUSION 

885  Commencement      (common 

law),  additional  plea 


886  Commencement,         admitting 

part  of  claim 

887  Commencement,   entire   decla- 

ration 

888  Commencement,  oyer 

889  Commencement,  several  pleas 

890  Conclusion,  nature  and  effect 

891  Conclusion,  country 

892  Conclusion,  verification 

893  Conclusion;    verification,    rec- 

ord 

894  Conclusion;  verification,  set- 

off 

895  District   of   Columbia    (statu- 

tory     commencement     and 
conclusion) 

896  Florida 

897  Maryland 

898  Virginia 

VERIFICATION 

899  District  of  Columbia 

900  Florida 

AFFIDAVIT    OF    MERITS 

901  Object 

902  Nature  and  effect 

903  Necessity  of  affidavit 

904  Additional  affidavit 

905  Requisites 

906  Forms 

DEMAND    FOR    JURY 

907  District  of  Columbia 

AMENDMENT 
108  Requisites 


IN  GENERAL 

698  Pleas;  classes,  naming 

Pleas  are  either  dilatory'  or  in  abatement,  and  peremptory  or 
in  bar.^  The  kind  of  pleas  to  be  interposed  to  an  action  is  gov- 
erned by  the  dignity  of  the  insti-ument  on  which  the  suit  is 
founded;  thus,  if  the  action  is  on  a  record,  conclusive  between 
the  parties,  it  can  only  be  denied  by  plea  of  nul  tiel  record.-    A 


1  Pitts  Sons '  Mfg.  Co.  v.  Commer- 
cial National  Bank,  121  111.  582,  586 
(1887). 


2  Mills  V.  Duryee,  7  Cr.  481,  484 
(U.  S.  1813). 


262  ANNOTATED   FORMS  OF   PLEADING   AND   PR.VCTICE 

defendant  docs  not  lose  his  defense  by  merely  misnaming  his 
plea.^ 

699  Plea  in  bar  defined 

A  plea  in  bar  shows  some  ground  to  bar  or  defeat  the  action.'* 

700  Special  plea,  defined 

A  special  plea  sets  up  a  defense  by  way  of  confession  and 
avoidance  without  denying  the  plaintiff's  cause  of  action.** 

701  Special  plea,  scope 

Any  fact  which  constitutes  a  bar  to  the  action  must  be  pleaded." 
All  matters  in  confession  and  avoidance  must  be  specially 
pleaded.  This  applies  to  matters  by  way  of  discharge ;  to  mat- 
ters which  show  tlie  transaction  to  be  eitiier  void  or  voidal)le  in 
point  of  law;"  and  to  matters  of  defense  which  arise  after  an 
issue  or  issues  have  been  joined.^  An  issue  of  law  cannot  be 
made  directly  by  special  plea.'-^  A  defendant  must  make  a  com- 
plete defense,  as  a  judgment  upon  the  merits  is  conclusive  of 
all  defenses  which  are  made,  or  which  might  be  made.^^ 

702  Special  pleas  amounting  to  general  issue,  test 

A  defendant  has  a  right  at  any  time  to  traverse  any  material 
allegation  in  a  declaration,  or  to  plead  the  general  issue.  He  has 
no  right  to  plead  both  pleas  in  the  same  action.  If  the  defendant 
pleads  matter  which  amounts  to  the  general  issue  and  also  the 
general  issue,  the  former  plea  may  be  stricken  from  the  files  as 
unnecessarily  incumbering  the  record.^  ^  A  special  plea  which 
amounts  to  the  general  issue  is  bad  upon  special  demurrer,^  2 
and  may,  on  motion,  be  stricken  from  the  files.  ^^    A  special  plea 

sKenyon   v.    Sutherland,    3    Gilm.  0  Wolf  v.   Powers,   241   111.   9,   13 

99   (1846).  (1909). 

4  Pitts    Sons'    Mfg.    Co.    V.    Com-  10  Neff  v.  Smith,  111  111.  100,  110 

mercial  National  Bank,  121  111.  587.  (1884). 

sBailev  v.  Vallev  National  Bank,  n  Curtiss  v.   Martin,  20  111.   557, 

127  111.  332,  338   (1889).  571  (1858);  Wadhams  v.  Swan,  109 

G  Consolidated   Coal   Co.   v.   Peers,  111.     46,     54     (1884);     Knoebel     v. 

150  111.  344,  354   (1894).  Kircher,  33  111.  308,  313   (1864). 

7  Circuit  court  rule  66  (Mich.)  ;  12  Cook  v.  Scott,  1  Gilm.  333,  338 
Tedder  v.  Fraleigh-Lines-Smith  Co.,  (1844);  Wiggins  Ferrv  Co.  v.  Blake- 
55  Fla.  496,  498   (1908).  man,  54  111.  201,  202 '(1870);   Moss 

8  Mount  V.  Scholes,  120  111.  394,  v.  Johnson,  22  111.  633,  643  (1859). 
400   (1887).  "Wadhams  v.  Swan,  109  111.  54. 


DEFENSES  AND  PLEAS  IN  BAR  263 

amounts  to  the  general  issue  if  it  puts  in  issue  a  fact  which  the 
plaintiff  is  bound  to  prove  under  the  general  issue. ^^ 

703  Traverse,  nature  and  scope ;  admission 

Every  fact  which  is  essential  to  a  cause  of  action  is  issuable.is 
It  is  not  permissible  to  traverse  and  to  confess  and  avoid  at  the 
same  time;i«  nor  to  tender  an  evasive  or  immaterial  issue.i^ 
The  denial  must  not  be  argumentative.^s  ^  pjg^  must  be  re- 
sponsive to  the  count  or  the  declaration  to  which  it  is  pleaded.i^ 
It  should  not  set  forth  repugnant  and  inconsistent  defenses.20 
The  plea  is  double  if  it  attempts  to  raise  a  variety  of  issues,  some 
of  which  are  material  and  some  not.-^  A  plea  is  demurrable  for 
duplicity  if  it  contains  two  distinct  matters,  either  of  which 
would  bar  the  action  and  each  of  which  would  require  a  sepa- 
rate answer.22  A  plea  which  fails  to  traverse  the  gravamen  of 
the  plaintiff's  cause  of  action  is  bad  on  demurrer.23 

A  plea  must  contain  a  good  answer  to  all  that  it  professes 
to  answer.-^  It  should  answer  the  whole  of  the  declaration, 
and  each  count  thereof.25  The  traverse  should  be  as  broad  as 
the  allegation  it  purports  to  answer.-^  A  plea  is  bad  as  a  whole, 
if  it  professes,  in  its  commencement,  to  answer  the  whole  cause  of 
action  but,  in  fact,  answers  only  a  part,-"  and  it  is  obnoxious  to 
a  demurrer.28  A  plea  which  purports  to  answer  the  whole  of  a 
declaration  containing  several  counts  and  answers  only  a  special 
count,  or  omits  to  answer  any  or  all  of  the  remaining  counts,  or 
a  material  portion  of  them,  is  bad  on  general  demurrer.29  Un- 
less there  are  other  pleas  to  the  unanswered  portions  of  the  decla- 
im Wadhams  v.  Swan,  supra.  2*  Hatfield  v.  Cheanev,  76  111.  488, 
15  Quincy  Coal  Co.  V.  Hood,  77  ni.  489  (1975);  Snyder  v.  Gaither,  3 
68,  72  (1875).                                              Scam.  91,  92  (1841). 

10  Priest    V.    Dodsworth,    2.35    HI.  25  Humphrey    v.    Phillips.    57    HI 

613,  619   (1908).  132,   135    (1870). 

IT  Distilling  &  Cattle  Feeding  Co.  2c  Wadhams  v.  Swan,  109  HI    54 

V.  People.  156  111.  448,  485  (1895).  27  Gebbie  v.  Mooney.  121  111.  2.55, 

18  Wadhams  v.  Swan.  109  111.  54.         257  (1887)  ;  People  v.  Weber,  92  111. 

19  School  Trustees  v.  Cowden,  240      288,  291  (1879). 

HI.  39.  42   (1909).  28  Warren  v.  kexsen,  3  Scam.  38, 

20  Distilling  &  Cattle  Feeding  Co.  40  (1841) ;  Dickerson  v.  Hendryx,  88 
V.  People,  156  HI.  483.  111.  66,  68  (1878). 

21  Distilling  &  Cattle  Feeding  Co.  20  Gebbie  v.  Mooney,  121  HI.  25.5, 
V.  People.  156  HI.  484.  257    (1887);   People  v.  McCormack, 

22  Louisville,   N.   A.  &  C.  Ry.  Co.  68  HI.   226,  230    (1873);    People  v. 
V.  Carson,  169  111.  247,  2.55   (1897).  Weber,  92  HI.  288,  291  (1879). 

23  Palestine  v.  Slier,  225  111.  630, 
637,  638  (1907). 


264  ANNOTATED  FORMS  OF   PLEADINU   AND   PRACTICE 

ration,  a  plea  which  professes  to  and  does  answer  a  part  of  the 
declaration,  admits  the  parts  that  are  unanswered.^" 

Any  material  fact  which  is  alleged  in  the  declaration  and 
which  is  not  denied  by  the  plea,  is  admitted  and  need  not  be 
proved  by  the  plaintiff. •'^i 

704  Traverse;  conclusion  of  law 

Conclusions  of  law  are  not  traversable.^^  The  allegation  that 
a  party  was  lawfully  in  possession  of  premises,  and  the  mere 
averment  in  a  declaration  that  it  was  the  duty  of  the  defendant 
to  do  certain  things,  are  conclusions  of  law  and  are  not 
traversable. 

705  Traverse,  immaterial  matter 

An  averment  in  a  declaration  which  is  not  material  to  the  cause 
of  action  is  not  traversable;  and  if  traversed  it  will  be  treated 
as  surplusage."*^ 

706  Traverse,  varying  written  instrument 

lu  ail  action  upon  a  written  instrunitnt.  the  plea  should  not 
attempt  to  vary  the  terms  of  the  instrument  by  parol  declara- 
tions of  the  parties  made  at  the  time  of  its  execution. ^^  A  plea 
is  demurrable  if  it  attempts  to  lay  the  foundation  for  the  intro- 
duction of  oral  testimony  to  vary  the  terms  of  a  written  instru- 
ment in  a  suit  where  tiie  declaration  sets  out  the  instrument  in 
haec  verba,  but  the  plea  is  not  demurrable  where  the  declaration 
is  not  so  drawn.  In  the  latter  case  the  oi),iection  is  available  for 
the  purpose  of  barring  the  evidence.^'^  In  Illinois,  the  consid- 
eration for  which  negotiable  instruments  are  given  may  be  im- 
peached by  parol  evidence  at  the  instance  of  the  defendant,  but 
not  at  that  of  the  plaintiff.3« 

30Dickerson  v.  Hendrvx,  S8  111.  (1853);  Jones  v.  Albee,  70  111.  34, 
69.  37  (1873);  Mason  v.  Burton,  54  111. 

31  Hughes  V.  Eichter,  161  111.  409,      349,  355  (1870). 

411    (1896);    Fish   v.    Farwell,    160  35  Solary   v.    Stultz,    22   Fla.    263, 

111.  236.  242  (1895).  268  (1886)  ;  Booske  v.  Gulf  Ice  Co., 

32  Chicago  &  Alton  R.  Co.  V.  Clau-  24  Fla.  550,  557  (1888);  Griffim? 
sen,  173  111.  100,  105  (1898);  Saf-  Bros.  Co.  v.  Winfield,  53  Fla.  589 
ford    V.    Miller,    59    JW.    205,    209  (1907). 

(1871).  36  Schneider  v.  Turner,  130  111.  28, 

33  Waterman  V.  Tuttle,  18  m.  292  38  (1889);  Chicago  Sash,  Door  k 
(1857)  ;  Knoebel  v.  Kircher,  33  111.  Blind  Mfg.  Co.  v.  Haven.  195  111. 
308,  313  (1864).  474,  482  (1902);  Sec.  9,  Negotiable 

84  Harlow   v.    Boswell,    15    111.    56      Instrument  act  (111.). 


DEFENSES    AJSD    PLEAS   IN    BAR  265 

707  Judgement,  estoppel 

A  defendant  is  entitled  to  a  judgment  in  bar  of  the  action  if  he 
succeeds  on  any  one  of  his  pleas  which  is  a  complete  answer  to 
the  declaration ;  a  plea  in  estoppel  is  no  such  plea.^^ 

DEFENSES 

708  Accord  and  satisfaction,  defined 

An  accord  is  a  satisfaction  agreed  upon  between  the  parties, 
which,  when  performed,  operates  as  a  bar  to  all  actions  upon  that 
account. 28 

709  Accord  ajid  satisfaction,  when 

A  creditor's  accfptanct.'  of  less  than  is  due  him  will  not  operate 
as  a  satisfaction  of  the  demand  where  the  amount  due  is  certain 
and  not  disputed;  but  a  creditor's  acceptance  of  an  amount 
claimed  by  the  debtor  to  be  due,  paid  in  full  settlement,  is  a  sat- 
isfaction of  the  claim,  where  the  amount  due  is  unliquidated,  or 
where  there  is  a  bona  fide  dispute  as  to  how  much  is  due,  although 
the  creditor  protests  at  the  time  that  it  is  not  all  there  is  due 
him,  or  that  he  does  not  accept  it  in  full  satisfaction  of  his 
claim.39 

710  Accord  and  satisfaction;  pleading,  proof 

An  accord  and  satisfaction  may  be  proved  under  the  general 
issue  or  under  a  plea  of  payment.*® 

711  Accord  and  satisfaction;  plea,  requisites 

A  plea  of  accord  and  satisfaction  must  allege  facts  from  which 
it  appears  that  the  defendant  owes  the  plaintiff  nothing,  or  that 
he  owes  less  than  the  plaintiff  claims.'*^  It  is  not  necessarj^  to 
allege  that  the  release  and  quit  claim  are  under  seal.'*^ 

S7  Dana   v.   Bryant,    1    Gilm.    104,  *o  Bailey  v.  Cowles,  supra;  "Wall- 

107  (1844).  '  ner   v.    Chicago    Consolidated    Trac- 

38  Bailey  v.  Cowles,  86  111.  333,  335      tion  Co.,  supra. 

(1877).  ••I  Farmers     &     Mechanics'     Life 

39  Snow    V.    Griesheimer,    220    111.       Assn.    v.    Caine,    224    111.    599,    607 
106,  109  (1906)  ;  Wallner  v.  Chicago       (1907). 

Consolidated   Traction   Co.,  245   111.  ♦z  Bailey  v.  Cowles,  supra. 

148,  151  (1910). 


266  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

712  Adverse  possession,  proof 

To  coustitute  adverse  possession  a  bar  to  a  land  owTier's  asser- 
tion of  his  legal  title,  the  possession  must  have  been  hostile  or 
adverse,  actual,  visible,  notorious  and  exclusive,  continuous,  and 
under  claim  or  color  of  title.  The  claim  of  title  may  be  proved 
by  acts  which  clearly  indicate  it.  In  determinin<?  whether  the 
possession  was  adverse,  all  of  the  facts  and  circumstances  attend- 
ing,' the  possession  and  the  use  of  the  land  may  be  considered.** 

713  Agreement  to  dismiss,  practice 

A  plaiutilf's  promise  to  dismiss  a  suit  is  not  pleadable  in  bar. 
The  agreement  should  be  presented  by  motion  to  dismiss  and 
affidavits.'** 

714  Alteration,  pleading 

The  alteration  of  an  instrument  sued  upon  must  be  specially 
pleaded;  it  cannot  be  proved  under  a  general  plea  which  simply 
denies  the  execution,  the  making  and  the  delivery  of  the 
instrument.*^ 

715  Appropriations,  constitutional  power 

The  appropriation  of  certain  sums  of  money  for  certain  pur- 
poses merely  confers  authority  to  use  the  money  appropriated 
for  the  designated  purj)oses,  luit  it  is  inelVectual  to  confer  con- 
stitutional rights  upon  the  officer  for  whose  benefit  the  appropri- 
ation was  made.""^ 

716  Attorney's  fees,  motion 

Comes  now  the  defendant  in  the  above  stated  cause,  by  his 

attorney and  moves  the  court  to  strike  out  of  the 

(second)  count  of  plaintitf's  declaration  so  much  thereof  as 
alleges  as  special  damages  the  expense  of  retaining  counsel  to 
prosecute  this  suit  to  recover  possession  of  the  (goods  or  other 
property)   alleged  in  plaintiff's  declaration,  amounting  to  the 

sum  of dollars,  for  the  reason  that  such  attorney's 

fees  is  not  a  proper  and  legal  element  of  damage.*" 

"Rich  V.  Naffziger,  248  Til.  455,  *6  People  v.   McCullough,   254  111, 

459   (1911).  9,   24   (1912). 

**  Christopher  v.  Ballinger,  47  111.  ^t  Gregory  v.   Woodberv,   53   Fla. 

107,  108    (1868).  566  (1907). 

+5  Tedder  r.   Fraleigh-Lines-Smith 
Co.,  55  Fla.  496,  499  (1908). 


DEFENSES   AND   PLEAS   IX    BAR  267 

717  Carrier's  liability,  limitation,  proof 

The  limitation  upon  the  common  law  liability  of  the  carrier  is 
invalid  without  proof  of  the  shipper's  assent  to  the  restriction; 
and  when  the  assent  is  that  of  the  consignor  in  behalf  of  a  con- 
signee, it  must  be  made  to  appear  that  the  consignor  had  author- 
ity to  bind  the  consignee."*^ 

718  Cause  of  action,  practice 

The  plaintiff's  failure  to  have  a  cause  of  action  at  the  time 
suit  was  commenced,  is  a  good  defense  to  the  action. ^^  -phe 
failure  to  state  a  cause  of  action  may  be  raised  by  motion  for  a 
directed  verdict. ^"^ 

719  Conditions  precedent ;  practice,  proof 

A  defendant  cannot  r^-ly  upon  a  phiintiff's  unperformed  cove- 
nant as  a  condition  precedent  where  the  covenant  goes  only  to  a 
part  of  the  consideration,  but  he  mus't  show  a  performance  of  the 
covenant  on  his  part  and  then  rely  upon  his  claim  for  damages 
for  any  breach  of  covenant  by  the  other  party,  either  by  way  of 
recoupment,  or  in  a  separate  action. °^  The  noncompliance  with 
any  of  the  conditions  of  a  contract  sued  upon  which  will  defeat 
the  recovery,  may  be  shown  under  the  general  issue. ^- 

720  Conditions  subsequent;  pleading,  waiver 

A  defendant  who  dt-sires  to  rely  upon  the  nonperformance  of 
a  condition  subsequent,  must  plead  it.^^  Replying  the  waiver  of 
a  condition  subsequent  does  not  constitute  a  departure  in  a  ma- 
terial matter.^^ 

721  Consideration,  failure  of 

The  verification  of  a  plea  of  failure  of  consideration  is  essen- 
tial to  its  validity. 5^     Under  Illinois  practice,  an  affidavit  of 

<8  PlaflF    V.    Pacific    Express    Co.,  &  Globe  Ins.  Co..  85  Mich.  210,  217 

251  111.  243.  248  (1911).  (1891). 

<»  Hovev  V.  Sebrincr,  24  Mich.  232  ^3  Carnev  v.  Ionia  Transportation 

(1872).     ■  Co.,  157  Mlich.  .54,  59  0909). 

50  Wallner  v.  Chicacrn  Consolidated  54  Tillis  v.  Liverpool  &  London  & 
Traction  Co.,  245  111.  148,  151  Globe  Ins.  Co.,  46  Fla.  268,  279 
(1910).  (1903). 

51  Rubens  v.  Hill,  213  111.  523,  536  "  National  Vallev  Bank  v.  Hous- 
(1905).  ton,    66    W.    Va.    336,    344    (1909); 

szMorley  v.   Liverpool  &   London       Sec.  3891,  Code  1906   (W.  Va.). 


268  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

merits  stands  in  place  of  a  verified  plea,  whenever  the  plaintiff 
files  with  his  declaration  an  affidavit  of  his  claim  or  demand.^* 


722  Copy  of  instrument  sued  upon 

The  want  of  a  copy  of  an  instrument  sued  upon  is  ground  for 
a  continuance,  but  not  for  the  dismissal  of  the  suit.^^  Objec- 
tion to  the  sufficiency  of  a  copy  sued  upon  imist  be  made  before 
trial,  or  it  is  waived.''** 

723  Corporate  existence ;  general  issue,  admission 

The  plaintiff's  existence  as  a  corporation  cannot  be  questioned 
under  the  general  issue,  but  it  must  be  put  in  issue  by  plea  of  nul 
iiel  corporation."'^  Tlie  general  issue,  if  pleaded  alone,  admits 
the  corporate  existence  of  the  plaintiff  corporation."*^ 

724  Cumbering  record,  motion 

Now  comes  the  defendant  in  the  above  styled  cause,  by  its 
undersigned  attorneys,  and  not  waiving  the  general  demurrer 
filed  to  the  plaintiff's  declaration  in  said  cause,  but  insisting  and 
relying  upon  the  same,  and  moves  the  court  to  strike  out  the 
declaration,  or  to  require  the  plaintiff  to  amend  the  same,  because 
in  its  present  form  it  is  so  framed  as  to  prejudice,  embarrass,  and 
delay  the  fair  trial  of  said  action,  and  in  support  of  said  motion 
the  defendant  makes  the  following  specifications : 

To  require  the  plaintiff'  to  state  specifically  wherein  the  de- 
fendant did  not  exercise  all  reasonable  care  and  diligence  in 
running  its  locomotive  engine  and  cara,  and  wherein  the  said 
defendant  did  not  exercise  reasonable  care  and  diligence  required 
by  law,  the  general  allegation  in  plaintiff's  declaration  being 
insufficient  to  advise  the  defendant  of  all  the  particular  acts  of 
negligence  which  plaintiff  may  rely  upon  for  recovery. 

Wherefore,  the  defendant,  in  the  event  the  court  should  over- 
rule the  general  demurrer  filed  to  plaintiff's  declaration,  moves 
the  court  to  strike  the  said  declaration,  or  to  compel  the  amend- 
ments thereto  according  to  the  specifications  as  above. ^^ 

56  Sec.  55,  Practice  act  1907  59  Mclntire  v.  Preston,  5  Gilm.  48, 
(Kurd's  Stat.  1911,  p.  1776).     See      59    (1848). 

Section  706.  eo  Bailev  v.  Vallev  National  Bank, 

57  Hopkins   V.   Woodward,    75   111.       127  111.  .332,  341   (1889). 

62,  65   (1874);   Stratton  v.  Header-  si  Atlantic    Coast   Line   R.   Co.   v. 

son,  26  111.  68,  75   (1861);  Sec.  32,      Crosby,  53  Fla.  400  (1907). 
Practice  act  1907  (111.). 

58  Chumasero  v.  Gilbert,  26  111.  39, 
40   (1861). 


DEFENSES  AND  PLEAS  IN  BAR  269 

Order 

This  cause  came  on  to  be  heard  upon  the  motion  of  the  defend- 
ant to  strike  the  declaration,  or  to  require  the  plaintiff  to  amend 
the  same ;  and  after  argument  of  counsel  for  the  respective  par- 
ties, and  the  court  being  advised  in  the  premises,  it  is  ordered 
that  the  said  motion  be,  and  the  same  is,  hereby  overruled,  the 
court  holding  that  the  said  declaration  is  not  so  framed  as  to 
prejudice,  embarrass  and  delay  a  fair  trial  of  the  cause,  and  that 
the  plaintiff  is  limited  in  the  trial  of  said  cause  to  the  several 
specific  acts  of  negligence  set  forth  and  alleged  in  said  declara- 
tion, and  that  the  same  are  properly  set  forth  in  one  count;  to 
which  order  of  the  court  overruling  the  defendant's  motion,  the 
defendant  did  then  and  there  except. 

It  is  further  ordered  that  the  said  defendant  be,  and  it  is  hereby 

required,  to  plead  to  said  declaration  on  or  before 

day  of ,19.. 

725  Defective  return,  notice 

A  defendant  is  charged  \nth  knowledge  that  an  insufficient 
return  of  an  otherwise  legal  service  of  process  is  amendable.  The 
defective  return  can  be  taken  advantage  of  only  when  no  amend- 
ment according  to  the  actual  fact  can  ever  show  a  valid  service 
of  process.*^  2 

726  Defendant's  capacity,  admission 

Unless  the  defendant's  representative  capacity  is  denied  it 
stands  admitted  on  the  record. ^^ 

727  Estoppel,  pleading 

Long  delay  and  acquiescence  in  the  performance  of  duty  on 
the  part  of  officers  of  the  state  is  not  imputable  to  the  state 
when  acting  in  its  character  of  sovereign  and  when  the  applica- 
tion of  the  doctrine  of  estoppel  is  not  necessary  to  prevent  serious 
injury  to  individuals.*'^  Matter  of  estoppel  should  be  set  up  by 
replication  only  when  the  matter  does  not  appear  on  the  face  of 
the  declaration.^^ 

728  Foreign  corporations'  contracts 

A  contract  entered  into  by  a  foreign  corporation  prior  to  its 
admission  to  do  business  in  Illinois  is  absolutely  void  and  cannot 

«2  Spencer  v.  Eickard,  69  W.  Va.  64  People  v.  Whittemore,  253,  378, 

322  (1911).  382,  383   (1912). 

63  McNulta  V,  Ensch,  134  111.  46,  es  Smith  v.  Wliitaker,  11  111.  417 

64    (1890).  (1849). 


270  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

be  made  the  basis  of  an  aetion.««  But  the  plaintiff's  failure 
to  qualify  to  do  business  in  Illinois  as  a  foreign  corporation  can- 
not be  interposed  in  defense  of  an  action  involving  interstate 
comraeree  or  matter  which  has  not  arisen  out  of  an  illegal  trans- 
action of  business  in  the  state."^  Foreign  corporations  which 
have  qualified  to  do  business  in  Illinois  previous  to  1905,  are  not 
required  to  re-qualify  under  the  act  of  1905.«8 

729  Foreign  corporations'  noncompliance;  plea,  requisites 

A  plea  of  foreign  corporation  must  allege  noncompliance  with 
the  statute  up  to  and  at  the  time  of  the  commencement  of  the 
suit.6« 

730  Foreign  corporation's  noncompliance;  plea  (Elinois) 

(Precede  by  general  issue)  And  for  a  further  plea  in  this 
behalf,  the  defendants  say  that  the  plaintiff,  at  the  time  of  the 
supposed  transactions  in  said  declaration  mentioned  and  at  the 
time  of  the  execution  of  the  said  bond,  was  a  corporation  organ- 
ized and  existing  under  the  laws  of  the  state  of . 

and  doing  business  for  profit  in  said  state;  that  the  said  plain- 
tiff is  not  a  railroad  or  telegraph  company,  nor  is  it  engaged  in 
the  insurance,  banking  or  money  loaning  business ;  that  the  said 
writing  in  said  declaration  mentioned  was  executed  in  the  state 
of  Illinois  anil  was  for  the  purpose  of  securing  the  plaintiff  for 

the  purchase  price  of  goods  sold  the  defendant , 

and  that  the  said  goods  were  sold  and  delivered  in  this  state, 
and  all  of  said  transactions  were  had  in  this  state  since  the  first 
day  of  July,  1905. 

Defendants  further  aver  that  the  said  plamtiff  had  not  prior 
to  said  transactions  or  prior  to  bringing  this  suit  made  applica- 
tion to  the  secretary  of  state,  signed  and  sworn  to  by  its  presi- 
dent and  secretary,  stating  what  business  it  proposed  to  pursue 
under  its  charter,  the  amount  of  its  eapital  stock,  the  proportion 
of  its  business  to  be  carried  on  in  this  state,  the  amount  paid 
in  on  its  capital  stock,  the  value  of  its  property  to  be  employed 
in  this  state,  the  names  of  its  president,  secretary,  and  directors 
and  their  residence,  and  the  name  and  address  of  some  attorney 
in  fact  upon  whom  service  could  be  had  in  this  state;  nor  had 

66  United  Lead  Co.  v.  Eeedy  Ele-  ss  white  Sewing  Machine  Co.  v. 
vator  Mfg  Co.,  222  lU.  199,  202  Harris.  252  ni.  361,  367  (1911); 
n906)  1905  Laws,  p.  118. 

67  Lehigh  Portland  Cement  Co.  v.  <59  McCarthy  v.  Alphons  Custodis 
McLean,  245  111.  326,  333  (1910);  Chimney  Construction  Co.,  219  111. 
Alpena  Portland  Cement  Co.  v.  Jen-  616,  625   (1906). 

kins  &  Eeynolds  Co.,  244  111.  354, 
361  (1910);  Sec.  6,  c.  32,  Kurd's 
Stat.  1909  (111.). 


DEFENSES   AND  PLEAS  IN   BAR  271 

it  prior  to  said  times  filed  with  the  secretary  of  state  a  copy  of 
Its  charter  or  articles  of  incorporation ;  nor  had  it  complied  with 
all  the  provisions  of  an  act  entitled,  "An  Act  to  regulate  the 
admission  of  foreign  corporations  for  profit,  to  do  business  in 
the  state  of  Illinois,"  in  force  July  11,  1905;  nor  had  it  com- 
plied with  all  other  regulations,  limitations  and  restrictions  ap- 
plicable to  domestic  corporations  of  like  character;  nor  had  the 
secretary  of  state  prior  to  said  time  issued  a  certificate  entitling 
plaintitf  to  do  business  in  Illinois  as  is  provided  by  statute;  nor 
had  plaintiff  prior  to  the  commencement  of  this  suit  been  licensed 
to  do  business  in  this  state,  as  is  by  said  statute  provided. 

^  Wherefore,  by  force  of  the  statute  in  such  case  made  and  pro- 
vided, the  plaintiff  cannot  maintain  its  aforesaid  action  ;  and  this 
the  defendants  are  ready  to  verity :  therefore  they  pray  judgment 
if  plaintiff  ought  to  have  its  aforesaid  action  against  them  the 
said  defendants. 


Replication 

And  the  plaintiff,  as  to  the  plea  of  the  defendants 

above  pleaded,  says  that  it,  the  plaintiff,  by  reason 

of  anything  in  that  plea  alleged,  ought  not  to  be  barred  from 

having  its  aforesaid  action,  because  it  says,  that  on  the 

^^y  of  ,  it  made  application  to  the  sec- 
retary of  state  of  the  state  of  Illinois  for  a  license  to  do  busi- 
ness in  said  state ;  that  it  filed  in  the  office  of  the  said  secretary 
of  state  duly  authenticated  evidence  of  its  incorporation,  as  is 
provided  by  law,  and  did,  in  all  respects,  comply  with  all  the 
rtMiuirements  of  the  laws  of  Illinois  governing  foreign  corpora- 
tions doing  business  in  the  state  of  Illinois;  that  said  secretary 

of  state,  on  the day  of ,  issued 

to  the  plaintiff  a  certificate  entitling  it,  the  plaintiff,  to  do 
business  in  the  state  of  Illinois  for  a  period  of  ninety-nine  years ; 

and  that  the  plaintiff  has  since  said day  of 

... ,  been  legally  qualified  to  do  bu.siness  in  the  state  of  Illi- 
nois; and  this  the  plaintiff  prays  may  be  inquired  of  by  the 
country,  etcJ'' 


731  Foreign  judgment 

In  an  action  on  a  foreign  judgment  or  decree,  all  defenses 
which  could  have  been  urged  to  an  action  thereon  in  the  state 
where  the  judgment  or  the  decree  was  rendered,  are  available  in 
a  similar  action  in  Illinois.'^ ^ 


70  White   Sewing   Machine   Co.   v.  7i  Britton  v.  Chamberlain,  234  HI. 

Harris,  252  lU.  361.  246,  249    (1908). 


272  ANNOTATED    FOKMS   OF    PLEADING    AND    PRACTICE 

732  Foreign  statute 

The  statute  of  another  state,  if  relied  upon  as  a  defense,  must 
be  pleaded  as  set  out,  or  in  substance. '- 

733  Fraud,  burden  of  proof 

The  effect  of  interposing  the  defense  of  fraud  in  an  action 
at  law  is  merely  to  shift  the  burden  of  proof.'^ 

734  Fraud,  pleading 

Fraud  and  misrepresentation  relating  to  the  consideration  of 
the  instrument  must  be  specially  pleaded  or  noticed.'^* 

735  Fraud ;  plea,  nature 

A  plea  of  fraud  is  a  defense  to  the  whole  action."^  A  plea 
charging  fraud  in  procuring  the  acceptance  of  a  draft,  is  a  plea 
at  law  and  it  is  not  available  as  an  equitable  defense."" 

736  Fraud ;  plea,  requisites 

A  plea  of  fraud  and  circumvention  must  aver  the  facts  which 
constitute  the  fraud,""  or  the  means  whereby  the  fraud  was  ac- 
complished."^  The  plea  must  charge  the  plaintiff  with  knowledge 
or  notice  of  the  alleged  fraud,""  and  it  must  aver  reliance  upon 
the  representations  claimed  to  be  fraudulent.^''  A  general  charge 
that  a  party  acted  fraudulently  or  that  he  was  guilty  of  fraud,  is 
a  conclusion  and  is  insufficient. ^^  A  plea  of  fraud  and  circum- 
vention, under  Illinois  statute,  must  show  fraud  and  circumven- 
tion in  obtaining  the  execution  of  the  instrument  and  not  in  the 
consideration.^^  jn  West  Virginia,  a  plea  which  alleges  fraud  in 
the  procurement  of  the  contract  sued  upon,  must  be  verified  by 
affidavit.^^ 

72  Donovan  v.  Purtell,  216  111.  629,  62,  65  (1874)  ;  Sims  v.  Klein,  Brcese, 
641    (1905).  303;  Sees.  9,  10,  c.  98,  Kurd's  Stat. 

73  Zeigler  v.  Illinois  Trust  &  Sav-      1909. 

ings  Bank,  245  111.  180,  196  (1910).  79  stouffer  v.  Alford.  supra. 

74  Miller  v.  Finley,  26  Mich.  248,  Ro  Wisdom  v.  Becker,  52  111.  342, 
250    (1872).                                                  345   (1869). 

75  Sims  V.  Klein,  Breese,  302  si  People  v,  Henry,  236  111.  124, 
(1829).                                                             128    (1908). 

70  Stouffer  v.  Alford,  114  Md.  110,  R^  Elliott  v.  Levings,  54  111.   213, 

116   (1910).  214    (1870);    Latham   v.    Smith,   45 

77  Cole  V.  Joliet  Opera  House  Co.,      111.  25,  27   (1867). 

79  111.  96,  97,  98    (1875);  Jones  v.  ss  National  Valley  Bank  v.  Hous- 

Albee,  70  111.  34,  36   (1873).  ton,    66   W.    Va.    336,    344    (1909); 

78  Hopkins  v.   Woodward,   75   lU.     Sec.  3891,  Code  1906. 


DEFENSES   AND  PLEAS  IN  BAB  273 

737  Fraud;  notice,  proof 

A  notice  which  sets  up  fraud  as  a  special  defense  limits  the 
defendant  to  the  specific  fraud  therein  alleged.S'* 

738  Improper  matter  in  declaration,  motion  to  strike 

Now  comes  the  defendant  in  the  above  stated  cause  by  his 

attorney ,  and  moves  the  court  to  strike  out  of  the 

•  ■, .•  ,^oj^^t  of  plaintiff's  declaration  so  much  thereof  as 

alleges  special  damages,  the   expenses  of  retainmg  counsel  to 

prosecute  this  suit  to  recover  possession  of  the 

alleged  in  plaintiff's  declaration  amounting  to  the  sum'  of  *"' 

.,  for  the  reason  that  such  attornev's  fees  are  not  a 

proper  and  legal  element  of  damage. 

Dated,  etc. 

Defendant's  attorney. 

739  Indebtedness  not  due,  oyer 

In  an  action  upon  an  indebtedness  which  is  not  due  but  which 
IS  described  as  due  in  the  declaration,  the  defendant  may  either 
set  out  the  evidence  of  the  indebtedness  on  oyer  and  demurrer 
to  the  declaration,  or  he  may  present  the  defense  by  an  objection 
to  the  plaintiff's  evidence  on  the  ground  of  variance.^s 

740  Jury,  right 

The  constitutional  right  to  trial  by  jury  is  limited  to  rights 
which  existed  at  common  law  at  the  time  of  the  adoption  of  the 
constitution.  It  does  not  include  new  rights  which  were  unknown 
to  the  common  law.  An  attorney's  lien  was  unknovv-n  to  the 
common  law  and  its  enforcement  may  be  authorized  without 
a  trial  by  jury.^s 

741  Jury;  empaneling,  notice 

At  common  law  the  parties  to  a  proceeding  in  which  a  jury 
is  to  be  impaneled  must  have  notice  of  when  the  jurors  are  to 
be  selected,  to  give  them  an  opportunity  to  be  present  and  to 
interpose  any  legal  objections  to  the  qualifications  of  any  person 
to  sit  as  a  juror  in  the  cause.^''^ 

84  Pangborn    v.    Continental    Ins.  st  Vandalia    Drainage   Distrir-t    v  / 
Co    62  Mich.  638.  640  (1886).  Vandalia  E.   Ca,T47^Ill    114    119 

85  Harlow    v.    Boswell,    15    111.    56  (1910)  ' 
(1853).                                                                     '' 

88  Standidge  v.  Chicago  Eys.  Co., 
254  111.  524,  532    (1912). 


274  ANNOTATED    FORMS   OF    rLEADINO    AND    IMtACTlCE 

742  Misnoraer  of  defendant,  waiver 

Jiy  pk'acliii^'  in  bar  of  an  cs  dt  Into  action  hy  the  ri^'ht  name,  a 
defendant  waives  liis  right  to  raise  an  objection  on  account  of 
his  misnomer.^* 

743  Mutuality,  want  of 

A  contract  which  is  not  mutual  is  void  for  wimt  of  consid- 
eration.®" 

744  Non  est  factum,  nature  and  effect 

At  common  law  ji  jjh'a  of  non  est  factum  in  actions  upon  spe- 
cialties and  the  general  issue  in  actions  upon  simple  contracts 
put  in  issue  the  execution  of  an  instrument.""  A  plea  of  non  est 
fuel  urn  merely  denies  th«'  execution  of  the  deed  or  instrument;  it 
is  not  a  |)lca  of  the  general  issue."'  The  denial  of  tlie  execution 
or  assignment  of  an  instrument  includes  the  denial  of  its 
delivery. "- 

The  plea  of  non  rst  factum  is  appropriate  in  Florida  for  the 
purjjose  of  <lenying  the  execution  of  a  sealed  instrument.'''*  If 
an  instrument  is  made  a  part  of  the  declaration,  the  execution  of 
the  instrument,  if  not  denied  by  plea,  is  admitted."* 

In  Illinois  the  execution  or  assignment  of  all  written  instru- 
ments, whether  sealed  or  not,  which  form  the  basis  of  an  action 
or  a  defense  must  be  put  in  issue  by  verified  pica  of  the  general 
issue,  by  verified  plea  of  n&n  est  factum,  or  by  any  verified  plea 
which  amounts  to  a  denial  of  the  plaintiff's  cause  of  action.  It 
cannot  be  done  by  verified  notice  filed  with  the  general  issue."!^ 
The  execution  or  the  assignment  of  an  instrument  is  admitted  if 
not  denied  by  afTidavit."'"' 

In  ^Michigan  the  execution  of  an  instrument  sued  upon  is  ad- 
mitted, unless  an  affidavit  denying  the  execution  is  filed  with  the 

88  Chicago  &  Alton  "R.  Co.  v.  Hein-  o^  Griffing   Bros.    Co.   v.    Winfield, 

rich.   157   111.   3SS.   393    (1895).  53   Fla.  589    (1907). 

snHigbie    v.    Rust,    211    111.    333,  os  Bailev  v.  Vallev  National  Rank, 

337  (1904).  127    111.    338,    340;    Ga.ldy    v.    Mc- 

00  Bailev  V.  Valley  National  Bank,  Cleave,  59  111.  182,  184  (1871); 
127  111.  332,  339   (1889).  McDonald   v.    People,   222    111.    32.5, 

01  Reeves  v.  Forman,  26  HI.  313,  328  (190fi);  Sec.  52.  Practice  act 
319   (1861).  1907  (111.). 

o:  Bailey  v.  Valley  National  Bank.  oo  Mclntire  v.  Preston,  5  Gilm.  48, 

127  111.   340.  63,  64  (1848). 

93  Tillis  V.  Liverpool  &  London  & 
Globe  Ins.  Co.,  46  Fla.  268.  277 
(1903);  Circuit  Court  Rule  67. 


DEFENSES  AND  PLEAS  IN  BAR  275 

plea.°^  Notice  of  special  defense  does  not  take  the  place  of  this 
afJBdavit.88  In  the  absence  of  a  denial,  under  oath,  of  the  execu- 
tion of  the  instrument  sued  upon,  no  contradictory  evidence  of 
the  writing  is  admissible.^^ 

A  plea  of  non  est  factum  must  be  verified  by  affidavit,  in  West 
Virginia,  or  the  plea  will  be  rejected. ^°*^ 

745  Non  est  factum,  proof 

Accord  and  satisfaction  cannot  be  shown  under  a  plea  of  non 
est  factum.^*^^  A  married  woman's  incapacity  to  contract  may 
be  proved  under  this  plea,i"-  and  this  rule  is  not  changed  by  the 
Married  Woman's  act  of  1861. los  Fraud  which  relates  to  the 
giving  of  a  deed  or  instrument  ajid  not  to  its  consideration,  as 
that  it  was  misread  to  tlie  maker  or  that  the  signature  was  ob- 
tained to  an  instrument  which  he  did  not  intend  to  sign,  may  be 
shown  under  a  plea  of  jimi  est  factum.^^^  A  plea  of  non  est 
factum  nu-rely  denies  the  execution  of  the  deed  or  instrument  in 
point  of  fact.»»'*  It  will  not  authorize  proof  of  the  alteration  of 
the  deed  or  the  instrument.'"" 

746  Non  est  factum;  pleas  (District  of  Columbia) 

*"'  Now  comes   the   defendant,   the    and 

says  that  the  writing  oI)ligatory  is  not  its  writing  obligatory  in 
manner  and  form  us  is  alleged  in  said  declaration. 

(Dlinois)    I'Ira 

And  the  defendant,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  .says,  that  the  said 
deed  (or  policy,  as  the  case  may  be)  as  in  said  declaration  stated 
is  not  his  deed ;  and  of  this  the  said  defendant  puts  himself  upon 
the  country,  etc. 

»T  Miller   V.    Prussian    Nat  1    Ins.  loa  Rtrecter  v.  Streeter,  supra. 

Co.,   ir.S  Mich.  402,  4f)4   (1909).  i04  Dorr  v.  Munsell,  13  Johns.  430 

9«  Simon    V.    Home    Ins.    Co.,    58  (N.    Y.    1816)  ;    Taylor    v.    Kin^r,   6 

Mich.  278    (1885).  Miinf.   358,   366    (Va.    1819);    Fran- 

»»  Union  Central  Life  Ins.  Co.  v.  chot  v.  Leach,  5  Cow.  506  (N,  Y, 
Howell,  101  Mich.  332.  334  (1S94);  1S26)  ;  Cole  v.  Joliet  Opera  House 
Miller  v.  Prussian  Nat '1  Ins.  Co.,  Co.,  79  111.  96,  97  (1875);  See  See- 
supra,  tion  706. 

Joo  National  Valley  Bank  v.  Hous-  los  Circuit  Court  Rule  67. 

ton,    66    W.    Va.    336,   344    (1909);  loo  Tedder  v.  Fraleigh-Lines-Smith 

Sec.  3859,  Code  1906.  Co..  .55  Fla.  496,  498   (1908). 

101  Bailey  v.   Cowles,  86  111.   333,  iot  See  Section  211,   Note  60. 
335    (1S77). 

loiSfropter  v.  Streeter,  43  111.  155, 
164   (1867). 


276  ANNOTATED   FORMS  OF   PLELVDINO   AND   PRACTICE 

Plea  b 

That  ho  never,  on  any  occasion,  time  or  place,  made  the  said 
promissory  note  in  the  said  plaint itTs  (Ifclanition  iiwntioncd, 
"J.  W.  T.  &  Co."  nor  did  he  promise,  jointly  and  severally,  by 

the  name,  style  and  tleseription  of  " ,"  to  pay  the 

sum  of  money  mentioned  in  said  promissory  note,  to 

nor  did  he  ever,  directly  or  indirectly,  authorize  the  making  of 
any  such  note  as  therein  described,  ami  the  said  defendant  fur- 
ther avers,  that  on  no  occasion  \va.s  he  ever  a  copartner  of  the 
said  and  that  no  relationshii)  of  the  kind  what- 
ever ever  subsisted  between  them,  the  said  defendant,  and  said 

.expressly  or  by  implication,  and  that  he  had  no 

knowledixc  of  the  existence  of  sidil  note  until  this  action  was 
brou^'lit,  nor  has  he  any  knowled^'e  of  the  consideration  thereof, 
and  i)()sitivcly  denies  the  execution  of  tlie  same  in  maimer  and 
form  as  in  said  plaintilT's  declaration  is  alle^jed  ;  and  this  the  said 
defendant  is  ready  to  verify.     Wherefore,  etc. 

ficplicafion 

And  the  said  plaintilT.  by  his  attorneys ,  as  to 

the  said  plea  of  the  said  defendant impleaded,  etc., 

by  hiiti  .secimdly  above  pleaded,  says,  that  he,  the  said  plaintiff, 
by  reason  of  anythiuLT  by  the  said  (lefendant  in  that  plea  alleged, 
ouj,'ht  not  to  be  barreil  from  bavin;;  ami  maintaining'  his  afore- 
said action  thereof  against  him,  the  said  defendant  implea<led, 
etc.,  because,  he  says,  that  the  defendant  did,  on  the  occasion, 
time  and  place  in  said  declaration  mentioned,  make  the  said 
promissory  note  in  the  said  plaint itV's  said  declaration  men- 
tioned, in  maniu'r  and  form  as  therein  alleged,  and  did 
l)romise,  then  and  there,  jointly  and  severally,  by  the  name, 

style  and  description  of ,  to  pay  the  sum  of 

money  mentioned  in  said  promissory  note  to  the  siiid , 

and  did  authorize  the  making  of  the  said  note  in  said  declara- 
tion described.     And  the  said  plaintiff  further  replying,  avers, 

that  the  said  defendant   ,  was  a  copartner  of  the 

said and  that  a  relationship  of  that  kind  did  sub- 
sist    between     the     said     defendant     and     said 

and  that  said  well  knew  the  exist- 
ence of  said  note  at  the  time  of  the  making  thereof,  and  long 
before  and  up  to  and  until  the  bringing  of  this  action,  and  that 

the  said  defendant ,  did  execute  the  said  promissory 

note  in  said  declaration  mentioned,  in  manner  and  form  as  in 
said  i)laintifif\s  declaration  is  alleged.  And  of  this  the  plaintiff 
puts  himself  upon  the  country,  etc.i"^^ 

108  Fuller  v.  Robb,  26  111.  246,  247 
(1861). 


DEFENSES  AND  PLEAS  IN  BAR  277 

(Maryland) 

For  a  plea  to  the  plaintiff's  declaration,  the  defendant  by  its 
attorney  says  that  the  deed  as  described  in  said  declaration  is 
not  the  deed  of  this  defendant. 


Attorney  for  defendant. 

Affirmed  as  to  the  plea  of  non  est  factum  this  

day  of ,  by ,  secretary  of  the  defendant 

company. 

(Mississippi) 

Personally   appeared   before   me    clerk  of  the 

court  of  said  county  and  state, ,  who 

on  oath  says  that  he  is  not  liable  and  not  indebted  in  manner 
and  form  alleged  to  pay,  or  either  of  them,  any  of  the  alleged 
acceptances  sued  upon,  because  he  says  that  he  did  not  sign  and 
execute  s<ii(l  acceptances,  or  either  of  tlieiii ;  that  said  acceptances 
did  nut  iiave  any  of  them  at  the  time  his  name  was  signed  to 
them,  the  sum  of dollars  either  in  writing  or  fig- 
ures, nor  any  promise  to  pay  said  sum,  nor  any  sum ;  that  de- 
fendant positively  refused  to  sign  any  note  or  contract  whatever 
to  the ,  or  anyone;  that  a  person  representing  him- 
self as  agent  of  the ,  made  a  verbal  contract  with 

defendant  whereby  it  was  agreed  that should  ship 

defendant  an  assortnient  of  jewelry,  the  amount  and  price  of 
whieh  was  not  then  tletermined  or  agreed  upon,  which  said  jew- 
elry was  to  renuiin  in  the  store  of  defendant  at for 

months  on   consignment,   that  defendant  should 

sell  what  he  could  for  any  price  he  pleased  and  account  from 

time  to  time  to  the company  for  what  he  actually 

sold,  at  the  invoice  price,  that  the  defendant  should  never  pay 
anything  nor  be  liable  for  any  jewelry  not  sold,  and  at  the  end 
of  the  year  either  party  could  have  the  jev.elry  unsold  removed 

by  the  ,  that  any  profit  made  on  the  jewelry  sold 

should  belong  to  defendant,  and  that should  fur- 
nish a  case  for  the  jewelry  free  of  charge  to  defendant,  which 
should  belong  to  defendant  at  the  end  of  the  year;  that  the  con- 
tract was  made  al)Out    and  that  the  jewelry  was 

delivered  about    ;  that  defendant  refused  to  sign 

any  note  for  the  jewelry  at  all ;  that  the  agent  of  plaintiff  re- 
quested defendant  to  sign  the  instrument  sued  on  simply  to  sig- 
nify his  acceptance  of  the  jewelry  and  not  as  a  note,  on  the  rep- 
resentation that  when  defendant  should  report  from  time  to  time 
what  jewelry  was  sold  as  was  contemplated  should  be  done  every 

days  and  remit therefor 

would  fill  in  the  blanks  the  amount  of  the  remittance  and  receipt 
the  paper  and  return  it;  that  he  signed  the  blank  acceptance 
only  on  such  representation  and  understanding;  that  he  would 
not  have  signed  otherwise ;  that  he  did  not  authorize  anyone  to 


278  ANNOTATED   FORMS  OF   PLEADINQ   AND   PRACTICE 

fill  in  said  blank  acceptance  the  sum  of   dollars 

and  treat  and  use  the  same  as  commercial  paper,  nor  as  a  note, 
nor  as  any  promise  to  pay  money ;  that  said  acceptance  was  so 
filled  in  and  used  without  his  knouk-d^e,  eonsent  or  authority; 
that  he  wouhl  not  have  si^'ucd  said  aeceptanee  had  it  been  rep- 
resented to  him  as  an  a^rei'ment  to  pay  anything  whatever;  that 

he  did  not,  by  sij^niu}^  the  same  in on  said  rejjre- 

sentations  of eompany 's  agent,  intend  thereby,  tuid 

dill  not  thereby,  bind  hinjself  to  pay    anything; 

that  said  acceptance  was  not  signetl  by  him,  and  is  wholly  void 
and  inoperative  and  was  frauduit-ntly  obtained  and  fraudu- 
lent ly  altered  and  lilletl  in  and  fraudulently  useil  contrary  to  the 
distinet  understanding  and  agre«'iiient  when  signed;  that  he  has 

remitted for  all  the  jewelry  that  he  has  sold ;  that 

the  remaining  jewelry  unsold  is  tarnislu'd  in  the  cases  and  is 
of  no  value,  and  that  said  aeeei)tance  is  not  signed  and  executed 
by  defendant:  all  of  which  he  is  ready  to  verify. 


Defendant. 

Sworn,  etc. 

747  Nul  tiel  corporation,  plaintiff,  nature  and  scope 

A  plea  which  denies  that  the  plaintiff  is  a  corporation,  being 
in  bar  of  the  action,  operates  as  a  special  traverse  of  the  aver- 
ment that  the  plaintilT  is  a  corporation  and  puts  it  upon  proof  of 
that  faet.'"^  The  defense  of  nul  tiel  plaintitV  corporation  can 
only  be  interposed  by  plea  ;  it  is  not  available  under  the  general 
issue  and  notice.' ^^  A  plea  of  mil  (id  corporation  is  good  where 
there  is  no  corporation  at  all,  as  distinguished  from  a  dc  facto 
corporation.' '1  A  party  who  has  contracted  with  an  association 
as  a  corporation  and  who  has  received  benefits  under  the  con- 
tract, is  estopped  from  (juestioning  the  legality  of  the  incorpora- 
tion in  an  action  upon  such  contract.' '- 

748  Nul  tiel  corporation,  plaintiff,  proof 

All  that  is  necessary  for  the  plaintiff  to  prove  under  this  plea 
is  an  organization  in  fact  and  a  user  of  corporate  franchises."' 
The  want  of  capacity  to  sue  as  a  corporation  may  be  shown 

109  Lewiston  v.  Proctor,  27  111.  414,  cago  Opera  Board  of  Trade,  238 
416     (1862);    Hoereth    v.    Franklin       111.  100   (1909). 

Mill  Co..  30  111.  151,  157  (1863).  n^Booske  v.  Gulf  Ice  Co.,  24  Fla. 

110  Bailey     v.      Vallev      National      550,559(1888). 

Bank,  127  111.  332.  340  (1889).  ii3  Mitchell  v.  Deeds,  49  111.  416, 

"1  Imperial  Building  Co.   v.   Chi-      420,  422   (1867). 


DEFENSES  AND  PLEAS  IN  BAR  279 

w-here  the  plea  of  nul  tiel  plaintiff  corporation  specifically  de- 
nies the  right  to  sue  in  the  name  used.^^* 

749  Nul  tiel  corporation,  plea 

(Precede  by  general  issue)  And  for  further  plea  in  this 
behalt,  the  defendant  say  actio  non  because  -he  say  that 
there  is  not  and  was  not  at  the  time  of  the  commencement  of 

this  suit,  any  such  corporation  as  the   as  by  the 

said  declaration  is  above  supposed.     And  of  this     he      put 
sel.  . . .  upon  the  country. 

750  Nul  tiel  record,  nature 

A  plea  of  mil  tiel  record  is  a  plea  in  estoppel  and  does  not  pre- 
clude a  party  from  insisting  upon  other  defenses  after  the  plea 
or  replication  is  disposed  of.'^^ 

751  Nul  tiel  record;  evidence,  coverture 

Kvid.-nce  of  coverture  is  admissible  under  plea  of  nul  tiel 
record.'"^ 

752  Nul  tiel  record,  plea 

(Commence  as  in  Section  889)     That  there  is  not  any  such 

record  in  the   court  of  county  (or 

ever  made)  in  the  state  of  Illinois  as  plaintiff  has  above  in  its 
declaration  alleged;  and  this  the  defendant  is  ready  to  verify 
wherefore,  he  prays  judgment,  etc. 

Bcplication 

(Commence  as  in  Section  928)     That  there  is  such  a  record 

remaining  in  the  said   court  of 

county,  as  the  plaintiff  hath  in  its  said  declaration  alleged;  and 
this  the  said  plaintiff  is  ready  to  verify  by  the  said  record,'  and 
therefore  puts  itself  upon  the  court  here  for  trial. 

Plea  b 

That  there  is  not  any  record  of  the  said  supposed  order  of 
dismissal  of  the  .said  action  of  replevin,  and  order  for  the  return 
of  the  property  taken,  in  the  said  declaration  mentioned,  remain- 

11*  Marsh    v.    Astoria    Lodge,    27  '■;  Forsyth  v.  Barnes,  228  111.  326, 

111.  421.  425   (1862).  .331   (1907). 

115  Dana  v.  Bryant,  1  Gilm.   104, 
108   (1844). 


280  ANNOTATED  FORMS  OP  PLEADING   AND  PRACTICE 

ing  of  record  in  the  said   court  of   

county,  in  manner  and  form  as  the  plaintitT     ha     in  said  decla- 
ration allej,'ed ;  and  this  the  defendant        ready  to 

verify;  wherefore     he     pray     jud^'uient. 

753  Nul  tiel  record ;  judgment,  nature 

A  plea  in  estoppel  riMjuires  a  court's  preliminary  decision 
when  there  are  other  questions  of  fact  to  be  tried;  and  a  judjj- 
ment  thereon  is  merely  intrrloeutory.^*' 

754  Ordinance ;  collateral  attack,  burden  of  proof 

The  determination  by  an  utVieial  body  or  tribunal,  as  a  city 
council,  upon  any  question  within  its  authority  to  hear  and  de- 
termine, is,  in  effect,  a  judgment  having  all  the  properties  of  a 
judgment  pronounced  by  a  legally  created  court  of  limited  juris- 
diction and  may  be  attacked  collaterally  oidy  for  want  of  juris- 
diction. The  Iturdtii  of  proving  the  want  of  jurisdiction  for  the 
purpose  of  collateral  attack,  is  upon  the  party  attacking  the  judg- 
ment or  proceding.^^^ 

755  Ordinance ;  validity,  reasonableness,  burden  of  proof 

An  ordinance  will  be  sustained  which  is  fairly  susceptible  of 
a  construction  that  would  make  it  valid,  and  also  of  one  that 
would  make  it  invalid."'-'  An  ordinance  is  regarded  as  prima 
facie  reasonable ;  the  burden  of  proving  its  unreasonableness  is 
upon  those  who  assail  it.^-** 

756  Ordinance,  pleading 

A  municipal  ordinjuico  must  be  specially  pleaded  and  in  plead- 
ing the  ordinance  it  is  only  necessary  to  set  out  the  substantial 
parts  of  the  ordinance  so  that  its  requirements  may  be  seen  and 
known. 1-1 

757  Organization,  collateral  attack 

In  a  collateral  proceeding  involving  the  enforcement  of  an 
ordinance  or  the  liability  to  a  penalty  or  a  tax,  the  validity  of  the 

i"Dana  v.  Bryant,  1  Gilm.  108.  120  Springfield     v.     Postal     Tele- 

118  People  V.  ElUs,  253  111.  369,  graph-Cable  Co.,  253  111.  346,  354 
374  (1912).  (1912). 

119  Park  Ridge  v.  Wisner,  253  111.  121  People  v.  Heidelberg  Garden 
360,  363,  S64    (1912).  Co.,  233  111.  290,  297   (1908). 


DEFENSES  AND  PLEAS  IN  BAR  281 

proceeding:  by  which  the  municipal  corporation  was  created  can- 
not be  attacked  or  called  in  question  in  any  respect  by  either 
party.  1"  And  this  rule  extends  to  the  territorial  annexation  or 
disconnection  proceedings  of  a  city  council,  ^^a 

758  Oyer,  motions  (District  of  Columbia) 

Now  comes  the  defendant ,  by  its  attorney  and 

craves  oyer  of  the  bond  dated ,  alleged  to  have  been 

given  the  plaintiff  company  by    ,  since  deceased, 

and  the  application  therefor  by  the  said   dated 

•  •■ ; as  referred  to  in  plaintiff's  declaration  and  affi- 
davit filed  herein. 

Attorneys  for  defendant. 

(Illinois) 

And  now  comes  the  said  defendant  by ,  its  attor- 
ney, and  craves  oyer  of  the  policies  of  insurance  sued  on,  and 
moves  for  a  rule  upon  the  said  plaintiff  that  he  produce  in  court 
for  the  inspection  of  this  defendant  the  original  policies  of 
insurance  referred  to  and  mentioned  in  his  declaration  filed 
herein,  jind  each  of  them,  and  the  conditions  thereof;  and  that 
until  such  policies  are  produced  the  said  cause  stand  continued 
without  day. 


Defendant's  attorney. 
Order 


And  afterwards,  to  wit,  on  the day  of ,  and 

of  the term, ,  of  the  said  court,  the 

said  motion  and  prayer  for  oyer  came  on  to  be  heard  before 

the  honorable ,  one  of  the  judges  of  said  court, 

both  parties  being  then  and  there  present  by  their  attorneys. 
And  thereupon  the  said  attorneys  of  the  said  defendant  made 
said  demand  and  prayer  for  oyer  in  open  court  and  asked  that 
said  motion  and  prayer  be  granted  as  asked,  but  the  court 
then  and  there  in  session  denied  said  motion  and  decided  that 
oyer  of  said  policies  of  insurance  could  not  be  had  or  craved 
by  the  defendant;  to  which  decisions  and  each  of  them  the  said 
defendant  by  its  said  counsel  did  then  and  there  duly  except. 

759  Partnership,  plea 

(Commence  as  in  Section  885)     That  the  plaintiff  ought  not 
to  have  his  aforesaid  action  against  him  the  defendant 

X22  People  V.  Ellis,  supra.  123  People  v.  Ellis,  supra. 


282  ANNOTATED    FORMS   OP    ri-EAPINO    AND    I'UACTICE 

because  he  says,  he  is  not  uor  evt-r  was  a  partiuT  with  thf  siiid 

ill  rt'speot  to  th«'  saitl  st'Vi-ral  supposed  musi'S  uf 

action  in  said  declaration  nu'iitioncd.  or  any  or  either  of  thiMu  in 
mminer  and  form  as  the  plaint itV  has  al>ove  in  that  behalf 
averred  (Conclude  to  the  country  and  aibi  veritication). 

760  Payment ;  nature  and  scope 

Till'  payiiHiit  uf  a  part  t)l"  a  debt,  or  of  litjuidated  dainanes,  is 
no  satisfaetion  of  tlie  whole  debt,  even  when  the  creditor  ajfrees 
to  receive  a  part  for  the  whole  and  ^i^'fs  a  receipt  for  the  whole 
demand.  Hut  if  a  smaller  sum  is  taki'ii  by  way  of  eompromise 
of  a  controverted  elaim.  or  from  a  ilebtor  in  failinj;  eircum- 
stances,  in  full  dis<'har«^'e  of  the  debt,  the  partial  payment  is  bind- 
ing on  the  pai-ties.'-'*  A  plea  of  part  j)ayment  operates  as  an 
extinguishment  pro  lantu  ami  is  not  available  as  a  set  otT.'-* 

761  Payment,  pleading 

A  plea  of  payment  nmy  be  pleaded  orally,  under  West  Vir^rinia 
practice,  with  the  bill  of  parti<-ulars  which  is  rc»|uired  by 
statute.'-" 

762  Payment,  plea  (Maryland) 

(Prei'cdc  by  general  issue )     And  for  their pb*a, 

the  defendants  say  that  before  this  action  they  fully  satisfied 
and  discharged  the  plaintitY's  elaim  by  payment. 

(Virginia) 

That  before  this  action  the  plaintitT's  claim  was  satisfied  and 
discharged  by  payment. 

763  Performance,  estoppel 

A  refusal  to  perform  a  contract  on  one  ground  estops  a  party 
from  basing  his  refusal  upon  another  ground.*-^ 

764  Puis  darrein  continuance ;  pleading,  time 

A  plea  puis  darrein  continuance  may  be  filed  at  any  time  be- 

i24Curti9s  V.  Martin,  20  111.  557.  1=0  National  Ynllev  Bank  v.  Hous- 

557   (1858).  ton,  66  W.  Va.  342." 

i25Solary  v.  Stultz,  22  Fla.  263,  i.;t  Osgood  v.  Skinner,  211  lU.  229, 

269   (1886).  237    (1904). 


DEFENSES  AND  PLEAS  IN  BAR  283 

fore  trial;  ^-^  but  it  should  be  interposed  as  soon  as  the  occasion 
therefor  has  arisen.^-" 

765  Puis  darrein  continuance;  plea,  requisites 

The  plea  must  show  facts  that  have  happened  after  the  last  con- 
tinuance, and  not  before  it;  i^o  it  must  also  give  the  day  of  con- 
tinuance, and  the  time  and  place  where  the  matter  of  defense 
arose.'^i  Althout,'h  in  bar  of  the  action  this  plea  requires  a  veri- 
fication.i^-  In  Illinois,  more  than  one  plea  puis  darrein  continu- 
ance is  permitted  in  the  same  cause.i^^  When  properly  pleaded 
this  plea  waives  and  supersedes  all  previous  pleas  and  confesses 
the  matter  in  dispute  between  the  parties  in  so  far  as  pleaded.i^-i 
A  plea  of  puis  darn  in  continuance  does  not  admit  the  truthful- 
ness of  an  aflidavit  for  a  capias  ad  rcspondendum.^'-^^ 

766  Puis  darrein  continuance,  practice 

At  cominun  law  a  new  issue  must  be  formed  on  a  plea  of  puis 
darrein  continuance  by  replication  or  otherwise,  and  tliis  is  true 
in  Michigan  notwithstanding  the  provision  which  abolishes  spe- 
ciiU  pleas  and  the  ])rovision  whieh  requires  notice  of  special  mat- 
ter of  defense.'^" 

767  Recoupment  defined 

The  right  of  u  ih  hiidant  to  show  that  the  plaintiff  did  not  sus- 
tain damages  to  the  extent  alleged,  and  thereby  to  reduce,  abate, 
or  altogether  defeat  his  recovery,  when  the  subject  matter  of  the 
reduction  springs  immediately  from  the  claim  relied  upon  by  the 
plaintilY,  is  denominated  recoupment  at  common  law. '2'  In 
Michigan  the  right  of  recoupment  has  been  extended  to  permit  a 
recovery  of  a  judgment  the  same  as  in  case  of  set  off.^^s 

i=s  Rohinson    v.   Burkell,   2    Seam.  »33Sec.  50,  Practice  act  1907,  ob- 

278   (1840);   East  St.  Louis  v.  Ren-  viating,     on     this     point     East     St. 

shaw,     l.';3     111.    491,    499     (1894);  Louis  v.  Renshaw,   l.J3  111.  491,  498, 

Ross  V.  Nesbit,  2  Gilm.  252  (1845)  ;  499  (1894)  and  other  cases. 

Kenyon    v.    Sutherland,   3   Gilm.    99  134  East  St.  Louis  v.  Renshaw,  153 

(lS-16).  111.  491,  498;  Mount  v.  Scholes,  120 

i:»  Souvais    v.    Leavitt,    53    Mich.  111.  394,  399. 

577,  580  (1884).  135  Van  Norman  v.  Young,  228  111. 

ISO  Kenyon  v.  Southerland,  3  Gilm.  425,  428   (1907). 

99,  103  (1846).  13"  Johnson    v.    Kibbee,   36    Mich. 

J  SI  Ross    V.    Nesbit,   2    Gilm.    252,  269,  270   (1877). 

357  (1845).  13- Ward  v.   Fellers,  3   Mich.   281, 

13-' Mount  V.  Scholes.  120  111.  394,  286     (1854);     M 'Hardy    v.     Wads- 

399   n887)  ;  overruling  Robinson  v.  worth,  8  Mich.  349,  354  (1860) 
Burkel,  2  Scam.  278. 


284  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICB 

768  Recoupment  distinguished 

The  common  law  recoupment  differs  from  set  off  in  that  re- 
coupment is  confined  to  matters  arisinj;  out  of,  and  connected 
with,  the  transaction  or  contract  upon  which  the  suit  is  brought, 
in  that  it  includes  liquidated  and  unliquidated  damages,  in  that 
the  judgment  for  the  det'erKlaut  is  not  for  an  access  of  dam- 
ages, »3»  and  in  that  the  defense  may  be  availed  of  under  the  gen- 
eral issue.  ^*° 

769  Recoupment;  claims,  nature 

In  recoupment,  the  opposing  elaims  may  be  different  in  char- 
acter, provided  they  arise  out  of  the  same  subject  matter  and  are 
susceptible  of  adjustment  in  one  action. '*>  A  claim  originating 
in  contract  may  be  recouped  against  one  founded  in  tort,  and 
damages  growing  out  of  a  lort  may  be  recouped  in  a  suit  upon 
contract.^^2 

It  is  not  necessary,  in  recoupment,  as  in  set  off,  that  the  mat- 
ter to  be  recouped  shall  arise  between  the  same  parties  to  the 
record  provided  the  counter  claims  grow  out  of  the  same  subject 
matter  and  are  susceptible  of  adjustment  in  one  action.'*^ 
Damages  whicii  arise  from  a  breaeh  of  an  express  or  implied 
warranty  in  a  contract  forming  the  subject  matter  of  the  suit,  are 
recoupable.*'*'*  Damages  whieli  result  from  a  breacii  of  an  im- 
plied warranty  of  quality  are  not  recoupable  in  an  action  for 
the  purchase  price  of  an  article,  under  a  general  agreement  that 
the  acceptance  of  the  article  shall  be  in  full  discharge  of  the 
contract,  and  there  is  a  constructive  acceptance  of  the  article ; 
as  the  acceptance  waives  the  damages  of  such  a  breach. ^^^ 
Damages  resulting  from  the  wrongful  prevention  of  the 
performance  of  a  contract  are  not  recoupable.^-*® 

A  party  may  set  up  by  way  of  recoupment  whatever  he  might 
have  declared  upon  at  the  time  of  the  pleading  and  he  is  not 
confined   to  the   time   of  the   commencement   of  the   action.'*^ 

138  (10082),  C.  L.  1897   (Mioh.).         428.  430  (1875);  Walker  v.  Chovin, 

139  Ward  V.  Fellera,  3  Mich.  281,       16  111.  489.  491  (1855). 

287    295  (1854).  144  Commercial  Realty  &  Constnic- 

"0  Stow  V.  Yarwood,  14  111.  424,  tion  Co.  v.  Dorsey,  114  Md.  172,  177 

425  (1853).  (1910).  v    t>  *  • 

141  Streeter  v.  Streeter.  43  HI.  155,  i«  Wolf  Co.   v.   Monarch   Eefrig- 

161    (1867)-    Stow  V.   Yarwood,    14  eratinfr  Co..  252  HI.  491.  508  (1911). 
Ill    426.        '  1^0  Stahelin  v.  Sowle,  87  Mich.  124, 

i42Streeter     v.     Streeter,     supra;  134  (1891). 
Stow  V.  Yarwood,  supra.  1^"  Pl'itt   v.  Brand,  26  Mich.  173, 

1*3  Waterman     v.     Clark,     76     111.  175  (1872). 


DEFENSES  AND  PLEAS  IN  BAR  285 

This  is  a  safe  rule  in  recoupment,  but  not  in  set  off,  for  the  rea- 
son that  in  recoupment  a  counter  claim  must  arise  out  of,  or 
must  be  connected  with,  the  subject  matter  of  the  suit  and  there 
is,  therefore,  no  possibility  of  buying  up  claims  that  are  uncon- 
nected with  the  subject  matter  of  the  litigation  for  the  purpose 
of  recouping  them  in  a  pending  action  and  thereby  avoiding  a 
judgment  for  costs,  as  it  is  possible  in  set  off  if  the  foregoing  rule 
would  prevail  there. 

770  Recoupment,  pleading 

At  common  law  it  is  not  necessary  to  plead  recoupment  spe- 
cially, but  it  may  be  availed  of  under  the  general  issue.^^^  In 
Illinois  actions  upon  promissory  notes,  bonds,  bills  or  other  in- 
struments in  writing,  a  claim  of  recoupment  must  be  specially 
pleaded.i<» 

A  recoupment  plea  must  be  in  bar  of  the  entire  cause  of  action 
and  may  be  pleaded  when  the  defendant's  damages  are  equal 
to  or  greater  than  that  claimed,  but  not  when  it  is  less  than 
that  which  is  demanded.'^** 

A  plea  or  notice  of  recoupment  must  specify  the  breach  of 
the  contract  or  the  violation  of  the  duty  complained  of  giv- 
ing instances  or  acts,  and  it  must  show  the  damages  sustained 
in  consequence  thereof. '^^  Generally,  the  recoupment  plea  or 
notice  should  allege  every  material  fact  that  is  necessary  to  make 
out  a  cause  of  action  against  the  plaintiff.  It  should  be  as  spe- 
cific as  a  declaration.152  if  damages  are  claimed  for  an  improper 
performance  of  a  contract,  or  for  a  failure  to  perform  the  con- 
tract within  a  time  limit,  all  the  facts  and  circumstances  showing 
such  damages  must  be  fully  and  definitely  stated.''"'^  A  defend- 
ant is  limited  to  the  damages  which  are  claimed  by  him.^^* 

"8  stow  V.  Yanvood,  14  111.  425;  isoWadhams  v.  Swan,  109  111.  62. 

Streeter    v.    Streeter.    43    111.    163;  isi  Watkins  v.  Ford,  69  Mich.  357, 

Bahcock   v.   Trice,    18    111.   420,   421  359  (1888). 

(1857);    Addems   v.    Suver,    89    111.  iss  Delaware  &  Hudson  Canal  Co. 

482,  483  (1878);  Wadhams  v.  Swan,  v.  Roberts,  72  Mich.  49,  50   (1888). 

109  111.  46,  62    (1884);   Commercial  isa  Darrah   v.   Gow,    77   Mich.    16, 

Realty  &  Con.'^truction  Co.  v.  Dorsev,  25    (1889);   Maltbv  v.  Plummer,  71 

114    Md.    172    (1910);    Franklin    v.  Mich.  578,  588   (1888). 

Lillv   Lumber  Co.,  66   W.   Va.    164,  i54  Taylor    v.    Butters    &    Peters 

166"  (1909).  Salt   &    Lumber    Co.,    103    Mich.    1, 

M9  Waterman  v.  Clark,  76  HI.  428,  3   (1894). 
431    (1875);    Sec.   9,  c.   98,  Kurd's 
Stat.  1909,  p.  1531. 


286  ANNOTATKI)    FUKMS   OF    PLEADING    AND    PR-\CTICE 

771  Recoupment,  judgment 

At  coiiimDii  law  a  .l.iiiidant  who  avails  himself  of  the  ri^ht 
of  rt'coupiiunt  is  not  oiitith-d  to  juilkMiu'nt  for  an  exeeas  of  dam- 
ages found  in  his  favor.>"  A  jMd^'nH•nt  for  defmdnnt  for  an 
»'X<'«'ss  of  damaRcs  in  his  favor  is  iH-rmisaible  uniler  MichiKan 
practice.'*" 

772  Release  and  discharge,  practice 

A  r.l.  ;is.'  whicli  luis  I'.rn  obtain. -d  by  duress  of  property  is 
invalid  and  inetTectual  as  a  defense.»"  A  plea  of  release  may 
thert'fon'  !).•  defeated  by  a  replieation  that  the  n-b-ase  was  ob- 
tained by  dun'ss  of  property. •'•'♦  A  release  and  disrhar^'e  ob- 
tained after  joinder  of  issue  is  inadniissible  under  the  general 
issue,  but  must  be  shown  under  a  pba  of  puis  darrein  continu- 
ance or  a  notice  in  the  natun-  of  such  a  plea.**'* 

773  Release  of  surety,  pleading 

The  allowance  and  the  ;»ee.ptanc»'  of  a  «liseount  for  the  settle- 
ment of  (litTerenees  arising,'  in  a  ^uarante«'d  credit  aecount,  does 
not  release  the  ^Miarantor  of  the  account."'"  Fm-ts  which  consti- 
tute a  release  of  surety  must  be  si)e<-ially  pleaded.*"*  The  release 
of  a  co-surety  must  be  specially  pleaded. "•- 

774  Res  judicata,  doctrine  and  application 

Any  fiK't  or  «|uestion  wiiieh  was  actually  or  directly  in  i.ssue 
and  whicli  was  i>asseil  upon  and  determined  by  a  court  having 
jurisdiction  to  decide  the  controversy  is  forever  wttle.l  between 
the  parties  to  the  suit  and  persons  in  privity  with  them  in  any 
sul)se(]uent  collateral  litiu'ation.  re«;ardle.ss  of  the  form  of  the 
action. ^""^  The  fundamental  principle  underlying  the  defense  of 
res  judicata  is  one  of  justice  an.l  public  policy.*^* 

iBBWnra  V.  Pollors.  3  "Nnoh.  2R1.  v.  Mallore.  2:?7  Til.  110.  121  (190S). 
"95     (lvS54)-     MHar.Iv     v.     Wa.ls-  xea  Rawlings  v.  Cole,  67  Mich.  431, 

worth.    8    Mich.    :U0.    .V.I     (1S60);  432   (1>^7). 

Stow  V    Yarwood,    14   111.   424.  426  i"'  Chicago  Terminal  Transfer  R. 

^1353)"  Co.     V.     Barrett.     2.-.2     III.     ^6.     93 

150  (10082),  C.  L.  1897  (Mich.).  (1911);    Chicago   v.    Partri.lgP.   248 

isTSpai.is  V.  Barrett,  57   111.  289,  El.    442.    446     (1911);     Hanna    v. 

•■'93   (1870).  Rt'a*'.  1'^-  ^^^-  -"'^e,  603  (1882)  ;  Poo- 

"issSpai.ls  V.   Barrett,   supra.  pie    v.     Amos,    246     111.     299.     303 

i59Sonvais    v.    Leavitt,    53    Mich.  (1910);    Gray    v.    Gillilan,    15    111. 

577    579   (1884).  453,    4.55     (1«<54);     Vanlandingham 

Kio  Malleable    Iron    Range    Co.    v.  v.  Rvan.  17  111.  25,  29   (18.55). 
Pvisev    "44  111    184,  197    (1910).  ifi^  Hanna  v.   Read,   102   111.   596, 

161  Commercial  Loan  &  Trust  Co.  603   (1882). 


DEFENSES  AND  PLEAS  IN  BAR  287 

The  doctrine  of  res  judicata  is  applicable  to  every  matter  which 
was  actually  determined  in  a  former  suit,  and  also  to  every  other 
matter  which  necessarily  might  have  been  raised  and  deter- 
mined in  it.i''^  It  is  limited  to  matters  necessarily  involved  in 
the  litigation,  whether  the  ultimate  vital  or  only  incidental  point 
was  decided.^"''  It  has  no  application  to  matters  of  mere  direc- 
tion that  have  no  effect  uj^on  the  substantial  rights  of  the 
parties.i'*^  It  has  no  application  against  or  in  favor  of  anyone 
who  is  not  a  party  or  privy  to  the  record.^^s  The  county  clerk 
is  in  no  proper  sense  a  representative  of  the  tax  payer  whose 
rights  are  not  derived  from  him  or  dependent  upon  his  acts.^°» 
The  people  are  regarded  as  the  real  party  to  a  proceeding  which 
has  the  enforcement  of  i)ul)lic  riglits.^"^  The  doctrine  of  res 
judicata  is  alike  applicable  to  law  and  equity.^ ' ^  The  defense  of 
former  adjudication  may  arise  in  three  different  ways:  as  an 
estoj)peI  by  judgment,  as  an  cstoi)pel  by  verdict,  and  as  an  es- 
toppel against  an  estoppel. ^"- 

775  Res  judicata,  burden  of  proof 

Tile  party  wlio  insist  upon  a  former  adjudication  must  bring 
himself  witliin  all  of  the  elements  that  enter  into  the  rule  or 
doi'trine  of  ns  judicata,  before  he  can  chiiiii  its  benefit. '"■'  The 
simihirity  of  the  (juestions  involved  in  the  two  proceedings  nuiy 
be  shown  l)y  the  record  of  the  first  suit  or  by  extrinsic  evidence, 
if  that  fact  does  not  aj)i)ear  from  the  record.'"* 

776  Res  judicata;  pleading,  waiver 

Matter  wiiich  constitutes  ns  judicata  must  be  specially 
pleaded  or  noticed,  whether  it  be  in  a  declaration,  plea,  or 
replication. '^5 

i"5  South    Park    Commissioner '    v.  i7i  People    v.    Harrison,    253    111. 

Montjjoriierv    Wan!    Jc    Co.,    248    111.  C28. 

2W,  ;U0,  312   (1911).  I--- Chicago    Theological   Seminary 

i"'*  Attorney  General  v.  Chicago  &  v.    Poople,    189    III.    4.39,    44.3    446 

Evanston   R.   Co.,    112    111.   520,   5.39  (1901);    Wright   v.  Griffey,  147  111. 

(1884).  49fi.   498    (1893);    Hanna  v.   Read, 

>67  Mariner  v.  Ingraham,  255  111.  102  111.  602. 

108,  114  (1912).  i-t  Chicago   v.  Partridge,  248  111. 

1  OS  People  V.   Amos,   246   111.   299,  442.  447,  448   (1911). 

303    (1910).  174  Chicago  Terminal  Transfer  R. 

100  People  V.  fliicago,   Burlington  Co.    v.     Barrett,     252     111.     86,     92 

&  Quincy  R.  Co.,  247   111.  340,  345  (1911). 

(1910).  175  Consolidated  Coal  Co.  v.  Peers, 

170  People    V.    Harrison,    253    111.  166  111.  361,  .368   (1897) ;  Bryant  v. 

625,  629   C1912).  Kenyon,  123  Mich.  151,  154  (1900); 


288  ANNOTATED    FORMS   OK    I'LKADING    AND    PRACTICE 

777  Res  judicata;  estoppel  by  judgement,  generally 

An  estopprl  by  judKiiirnt  is  liniittMl  to  jud^'inents  wlii.-h  in- 
volve a  decision  upon  the  merits  of  tlie  controvi-rsy,  whether  the 
issue  raised  was  by  demurrer  or  plea.*^"  A  judgment  upon  u 
demurrer  for  defect  in  the  ph'iulinjjH  as  upon  special  demurrer, 
is  no  bar  to  another  action  for  the  same  cause;  but  a  decision 
upon  the  merits  of  a  cause  of  action  or  defense,  as  upon  general 
demurrer  is  a  bar  to  a  subse(iuent  proceeding  upon  the  same 
facts. '^^  A  former  recover}'  is  a  good  defense  to  a  subsequent 
action  notwithstanding'  the  pendency  of  an  appeal  from  the  jud^'- 
ment  or  decree. >"*•  In  an  estoppel  by  judgment  there  must  be, 
as  between  the  actions,  indentity  of  parties,  of  subject  matter, 
and  of  cause  of  action.'"'  It  is  not  tlie  recitals  of  a  judgment, 
but  it  is  its  effect  which  makes  it  res  judicata.^*^^ 

778  Res  judicata;  estoppel  by  judgment,  affirmance  and  rever- 

sal 

A  judgment  of  aflirmanco  finally  and  conclusively  puts  an  end 
to  the  controversy  as  to  all  objections  actually  made  or  which 
nii^'ht  have  been  made  and  as  to  the  merits  whether  considered 
or  not  in  the  reviewini,'  court. '«»  A  judgment  of  reversal  may 
constitute  a  bar  or  an  estoppel  to  a  subsequent  proceeding  if  it 
is  shown  that  it  directly  affirms  or  denies  some  distinct  fact  in 
issue;  although  as  a  general  thing,  a  reversal  simply  nullifies  a 
former  judgment  or  decree,  declaring  that  it  shall  henceforth 
be  void.^*'2  a  reversal  judirmont  is  conclusive  only  of  fjuestions 
which  were  actually  decided.'"  A  jud^nnent  of  an  Illinois  ap- 
pellate court  reversing  a  judgment  of  the  trial  court  without 
remanding  and  containing  a  finding  of  facts,  which  is  not  ap- 
pealed from,  is  a  bar  to  a  second  suit  upon  the  same  cause  of 

Bateman  v.  Gran.l  Rapids  &  Tn.liara  ' ■"  Hiiraco   TheoloRical    Seminary 

R    Co     96   Mich     441.   44.-^    (1S93);  v.   Ppoplo.    ISO    III.   44.3;    Chicago   v. 

Chicago     Theologi.-al     Seminary     v.  Partridge.  248  111.  442.  446  (1911) 
People     1S9    111.    4.39,    447    (1901);  i*o  People   v.    WTiittaker.    2.d4    111. 

Hahn  V.  Ritter.  12  111.  80,  83  (18.^0).  537,  541  (1912). 

iTo  Vanlandineham  v.  Rvan.  17  111.  i"  People  v.  Waite.  243  111.   l.>6. 

25    "9    (1855).  '  161   (1909). 

ITT  People    V.    Harrison,    253    111.  "2  Chicago   Theological   Seminary 

629;   People  v.  Chicago.  Burlington  v.  People,  189  111-  -f;^-*- 
&    (^lincy    Co.,    247    111.    340.    344  iss  People  v.  Waite.  243   111.   156, 

(1910);    Smalley    v.    Edey.    19    111.  162   (1909). 
207,  211   (1857). 

178  Moore    v.    Williams,     132     111. 
589,  590  (1890). 


DEFENSES  AND  PLEAS  IN  BAR  289 

action,  although  the  appellate  court  judgment  fails  to  recite  that 
the  appellant  go  hence  without  day,  or  that  the  appellee  take 
nothing  hy  his  suit,  or  other  words  of  like  import  showing  a  final 
disposition  of  the  subject  matter  of  litigation,  which,  by  the  com- 
mon law,  are  necessary  to  a  final  judgment  in  a  court  of  original 
jurisdiction.184  Jn  setting  up  a  judgment  of  reversal  and  re- 
mandment  as  res  judicata,  the  plea  must  specifically  and  not 
generally,  allege  the  particular  question  upon  which  the  benefit 
of  the  former  decision  is  claimed. ^^^ 

779  Res  judicata;  estoppel  by  judgment,  default  judgement 

A  judgment  recovered  in  a  former  action  for  want  of  a  plea 
is  res  judicata  upon  all  causes  of  action  which  were  known  to 
the  judgment  creditor  at  the  time  of  the  bringing  of  the  action 
and  which  might  have  been  included  therein. ^^^ 

780  Res  judicata;  estoppel  by  judgement,  dismissal  of  former 

proceeding 

An  order  or  judgment  dismissing  a  proceeding  for  want  of 
juristlietion  is  not  ns  judicata  of  a  proceeding  that  is  afterwards 
properly  brought.'**" 

781  Res  judicata;  estoppel  by  judgment,  erroneous  judgment 

Tlu>  judgment  is  its  judicata  althouirh  it  migiit  be  so  errone- 
ous that  it  would  have  been  reversed  on  appeal  or  error.^** 

782  Res  judicata;   estoppel  by  judgment,   judgment  against 

partner 

A  judgment  recovered  against  one  member  of  a  partnership 
upon  a  partnership  debt  is  a  bar  to  a  subsequent  action  against 
the  other  members  of  the  firm,  regardless  of  whether  such  mem- 
bers were  out  of  the  county  at  the  time  that  the  first  suit  was 
brought  and  the  judgment  was  rendered.  The  Illinois  provision 
of  the  statute  which  makes  all  joint  obligations  joint  and  sev- 
eral, has  no  application  to  partnerships. ^^^    Members  of  a  firm 

»»*Larkin9  v.  Terminal  R.  Asa'n.,  ist  Liisk  v.  Chicago,  211   111.   183, 

221    m.    428,    4.34    (1906).  190   (1904). 

•  "s  Chicaco    Theolo^cal   Seminary  '""People  v.   Chicago,  Burlington 

V.  People.  189  111.  4.53.                        "  &  Quincv  R.  Co.,  247  111.  344. 

»««Gaddi8  v.  Leeeon,  55  111.  522,  i""  Fleming  v.   Ross,  225  111.   149 

525  (1870).  (1907). 


290  ANNOTATED    FORMS   OF    I'LKADINO    \SU    I'UACTICE 

who  had  hvm  sued  in  iin  at-tiou  in  which  one  of  them  was  .nerved 
and  judgment  rench-red,  may  he  made  pJirtit'S  to  the  judtjmeut 
under  special  statutory  provision.*"" 

783  Res  judicata;  estoppel  by  judgrment,  tax  judgment 

A  judgment  for  ta-Xts  hascd  upon  an  appearance  and  defense 
on  the  merits,  has  the  sauie  conclusive  effect  as  any  other 
judgment."" 

784  Res  judicata;  estoppel  by  judgment,  test  case 

A  judgment  in  a  suit  or  prot'eeding  which  was  devised  for  the 
sole  purpose  of  having  a  certain  judgment  entered,  binds  the 
parties  to  the  scheme  alone,  and  no  one  elso.'**^ 

785  Res  judicata;  estoppel  by  judgment,  pleading 

A  former  judgment  l)as«Ml  upon  the  wime  subject  matter  is 
inadmissil)le  under  the  general  issue  and  must  be  specially 
pleaded  or  noticed.'*** 

786  Res  judicata;  estoppel  by  judgment,  plea,  requisites 

A  plea  of  former  n-covery  whii-h  seeks  an  absolute  bar  to  a 
subsequent  action  must  rest  upon  the  sameness  of  the  cause  of 
action  in  both  proceedings  by  showing  identity  of  parties,  of  sub- 
ject matter,  and  of  cause  of  action;  '"*  it  must  aver  the  entry  of 
a  final  judgment;"'^  and  it  must  state  either  the  term  of  the 
court  at  whicii  the  judgment  was  recovered,  or  the  exact  date  of 
its  rendition;  and  when  t^iken  in  vacation,  the  time  of  the  entry 
of  judgment  by  the  clerk  should  be  stated.""^ 

787  Res  judicata;  estoppel  by  judgment,  pleas 

(Commence  as  in  Section  88i>)  That  heretofore  the  plaintiff 
and  the  said  ,  in  the  said  declaration  mentioned, 

190  Sherburne    v.    Hvde,    1S5    Til.  lo*  Wright  v.  Griffey.  147  HI.  496, 

580   (1900).                    '  498  (1893);  Hanna  v.  Read,  102  111. 

181  Nefif    V.    Smyth,    111    111.    100,  602;    Grand    Pacific    Hotel    Co.    v. 

Ill    (1884).  Pinkerton.    217    111.    61,    80    (190.5). 

102  People  V.  Chicago,  Burlington  i^s  Collins    v.     Metropolitan    Life 

&  Quincy  R.  Co.,  247  111.  .344.  Ins.  Co.,  232  111.  37,  48   (1908). 

193  Porter  v.  Leaohe,  .56  Mich.  40  i»>!  Mount  v.  Scholes,  120  111.  394, 

(1885)  ;  Briggs  v.  Milhurn.  40  Mich.  398,  399. 
512,    514     (1879);     Tabor    v.     Van 
Vranken,  39  Mich.  793,  794  (1878) ; 
Gray  v.  Gillilan,  supra. 


DEFENSES  AND  PLEAS  IN  BAB  291 

impleaded  him,  the  defendant,  in  the    court  of 

county,  in  said  state,  to  the terra  of 

said  court,  19..,  in  a  certain  bill  of  complaint  on  the  chan- 
cery side  of  said  court,  for  not  performing  the  very  same 
promises  in  said  declaration  mentioned ;  and  such  proceedings 

were  thereupon  had  in  said  bill,  that  afterwards,  at  the 

term  of  said  court,  19..,  by  the  consideration  and  decree 
of  said  court,  the  defendant  was  decreed  to  be  indebted  to  the 
complainants  in  said  bill  for  such  non-performance  of  said 
promises,  and  said  cause  was  thereupon  referred  to  a  master  in 
chancery  of  said  court  for  an  accounting  to  ascertain  the  amount 
of  such  indebtedness.  And  such  master,  upon  such  accounting, 
found  that  the  defendant  was  indebted  to  said  complainants  on 

account  of  the  premises  in  the  sum  of  $ ,  damages; 

and  thereupon,  upon  the  report  of  such  finding  to  said  court, 
said  court  confirmed  miul  report,  and  by  the  consideration  and 
judgment  of  the  same  court,  a  decree  was  entered,  ordering,  ad- 
judging and  decreeing  that  the  defendant  should  pay  complain- 
ants saiil  sum,  $ ,  and  the  costs  of  complainants  in 

that  behalf,  as  by  the  record  thereof  still  remaining  in  said  court, 
more  fully  appears.  ^Vhich  said  judgment  and  decree  still  re- 
mains in  full   force  and  effect.     And  after  the  impleading  of 

this  defendant  by  said  complainants  in  said court, 

and  while  an  appeal   from  said  judgment   was  pending  in  the 

appellate  court  in  and  for  the district  of  said  state,  the 

death  of  the  said  comi)lainant  was  suggested  of  record  in  the 
appellate  court,  and  said  cause  thereupon  proceeded  in  the  name 
of  said  A.  H.,  plaintiff  in  this  suit,  as  survivor,  and  such  proceed- 
ings were  thereupon  had  in  said  ajipellate  court,  that  such  judg- 
ment and  decree  was  at  the term,  19.  .,  affirmed, 

which  said  order  of  aflirmance  still  remains  in  full  force  and 
effect.     And  this  defendant  thereupon  paid  and  satisfied  said 

judgment  or  decree  of  said court.     (Conclude  as 

in  Section  892) 

Estoppel  by  way  of  replication 

(Commence  as  in  Section  928)    That  on  the day 

of ,  19 . . , filed  in  the 

court  of county,  in  the  state  of ,  their 

certain  declaration  against  the  said  defendant  in  the  action  then 
pending  in  said  court  upon  the  law  side  thereof,  and  in  which 
action  the  defendant  was  duly  served  with  summons  and  ap- 
peared by  counsel  and  filed  its  pleas  to  said  declaration,  and  of 
which  cause  the  court  had  full  and  complete  jurisdiction  of  the 
persons  of  the  plaintiffs  and  defendant  and  the  subject  matter; 

that  said  action  was  number in  said 

court :  that  in  and  by  the  declaration  and  suit  the  said  plaintiffs 

and set  up  the  execution  of  the  same 

lease  upon  which  this  suit  is  founded  and  therein  sought  to 


202  ANNOTATEH  FUKMS  OK  I'LtADINU  AM)  I'KAITICK 

recover  rent  due  and  owinp  froiii  this  defeiulunt  u«  teiiunt,  to 
them  as  landlords  hy  tin*  terms  of  said  lease  for  tlu-  prnod  of 

time  from    to   inclusive,  which  rent 

was  due  according;  to  the  terms  of  said  h-asc  and  was  un|>aid. 

'I'hat  in  said  cause  nuiid)cr  the  plaintilT.^  tih>d  additional  counts 
to  the  declaration  hy  h-ave  of  the  court  upon  the  same  Icasr  to 
recover  for  tin-  same  rent  due  and  owinj:  hy  the  <1»  tVndant  to 
the  plaintilVs  as  was  claimed  in  the  original  declaration,  hut  hy 
the  additional  counts  the  plaiutitVs  sou^'ht  to  m-l  out  more  fully 

the  execution  of  saiti  lease  hy  the  lessors  s«iil and 

as  landlords  on  the  one  part  and  this  ilefendaut 

as  lessee  and  tciumt  <»n  the  other. 

That  in  course  of  the  prooeedin^r  in  said  cause,  and  pendintr  a 

hcarinj;  thereof departed  this  \\l\'  ami  hy  his  lust 

will  duly  prohatcd  in  the court  of 

county  on , his  wife,  and   

his  (lau^'hte^.  were  maile  executrixes  of  his  estate  and  duly  rpiali- 

ticd  as  such,  atid pending  said  suit,  also  departed 

this  life  and  hy  his  last  will  and  testament  duly  prohatcd  in  the 

court  of county,  his  wife  was  made 

sole  executrix  of  his  estate  and  she  duly  (|ualilied  in  the 

court  of county  as  such  executrix,  and  still  is  the 

sole  executrix  of  said  last   will  and  testament. 

That  the  facts  of  the  deaths  of and 

were  duly  suir^'csted  in  the  court  in  said  cause  and  the  court 
<luly  entered  an  order  suhstitutinir  saitl  executrix  in  place  of  the 

said    and    res[)ectively    as    parties 

plaintiffs  who  an*  the  same  persons  who  are  plaintiffs  in  this 
action  and  against  the  same  defendant  who  is  defendant  in  this 
action. 

That  the  said  defendant  in  said  cause  filed  pleas  to  the  original 
declaration:  first,  the  general  issiie ;  secondly,  a  special  plea,  hy 
the  terms  of  which  it  plead«'d  that  at  the  time  of  the  making  of 

the  supposed  lease,  to  wit,  on  the day  of 

, ,  the  .said one  of  the  plain- 
tiffs was  the  vice-president  and  general  manager  of  the  de- 
fendant; that  the  lease  in  said  declaration  mentioned  was  signed 
on  behalf  of  defendant  hy  the  said  as  vice-presi- 
dent and  general   manager  thereof    ,   without   the 

knowledge  and  consent  or  approval  of  the  board  of  directors  of 
the  defendant;  that  the  signing  and  execution  of  said  lease  on 

behalf  of  the  defendant  by  the  said  with  and  for 

himself  and  the  other  plaintiffs  therein,  was  unlawful  and  void 
and  against  public  policy ;  that  the  same  was  in  no  manner  ever 
ratified  or  confirmed  by  the  board  of  directors  or  proper  officials 
of  said  defendant  or  by  any  other  persons  thereto  by  the  defend- 
ant lawfully  authorized ;  that  after  the  signing  of  said  lease  as 
aforesaid,  and  before  the  same  was  ever  ratified  or  confirmed  by 
the  board  of  directors  or  other  proper  officers  of  said  defendant, 
it,  the  defendant,  on  the   day  of   , 


DEFENSES  AND  PLEAS  IN  BAR  293 

19..,  vacated  and  removed  from  said  premises  and  delivered 
up  the  possession  which  they,  plaintift's,  have  ever  since  and 
still  hold:  all  of  whioli  the  defendant  was  ready  to  verify  and 
prayed  jud^nent  whether  the  plaintiffs  ought  to  have  their  said 
action  against  it. 

That  ujK)!!  the  filing  of  the  additional  counts  to  the  original 
declaration  tiled  in  s«iid  cause  the  defendant  obtained  leave  of 
the  court  and  re-tiled  said  jileading  and  special  plea  to  the  said 
declaration  as  pleas  to  the  additional  counts  filed  by  the  plain- 
tiffs, whereby  the  siiid  special  plea  was  pleaded  to  aJl  of  the 
plaintiffs  cause  of  action. 

That  in  said  cause  the  plaintiffs  filed  their  replication  to  the 
said  pleas  of  the  defendant  as  re-Hled  aforesaid,  whereby  the 
plaintiffs  pleaded  in  reply  to  the  general  issue  by  the  defendant, 
and  they  als<j  tiled  their  siM-cial  replication  to  the  special  plea  of 
the  defendant  aforesaid ;  and  by  the  said  special  replication 
pleaded  that  by  rea.son  of  anything  in  that  plea  alleged  they 
ought  not  to  be  barred  from  having  their  aforesaid  action  be- 
cause the  said  lease  in  siiid  declaration  described  and  mentioned 

was  signed  on  behalf  of  said  defendant  by  the  said 

as  vice-presith'ut  and  general  manau'er  thereof  willi  the  full 
knowledu'e  and  cons^-nt  an<l  approval  of  the  board  of  directors 
of  said  defendant ;  that  the  signing  and  execution  of  said  lease 

on  behalf  of  said  deft-ndant  by   was  lawful,  valid 

and  binding  on  said  defendant,  and  was  not  signed  on  behalf  of 

said  defendant  by  the    as  aforesaid,   without  the 

knowledge  and  consent  or  approval  of  the  board  of  directors  of 
said  defendant,  and  that  the  signing  and  execution  of  lease  as 
aforesaid,  was  not  unlawful  and  voiil  and  against  public  policy 
in  manner  and  form  as  the  defendant  pleaded  in  Siiid  plea. 
Keplying  further,  said  plaintitfs.  in  said  special  replication 
pleaded  that  the  said  lease  was  duly  ratified  by  the  proper  offi- 
cials of  said  defendant  thereto  properly  authorized  by  the  defend- 
ant and  that  the  defendant  did  not  deliver  up  the  possession  of 
said  premises  to  the  plaintitfs  after  the  signing  of  said  lease  as 
aforesaid  and  before  the  same  was  ever  ratified  by  the  board  of 
directors  or  other  officials  for  the  said  defendant  in  manner  and 
form  as  the  defendant  pleaded  in  said  special  plea;  and  that 
the  plaintiffs  never  accepted  the  surrender  of  said  premises,  or 
of  siiid  lease.  And  further  replying,  they  pleaded  in  said  repli- 
cation, tiiat  the  said   defendant  by  its  acts  of  its 

duly  authorized  officials   recognized,  ratified  and 

confirmed  said  lease  and  occupied  said  premises  under  the  terms 
and  conditions  of  said  lease  and  paid  rent  to  the  plaintiffs  under 

the  terms  and  conditions  of  said  lease  long  after  the  said 

ceased  to  be  manager  or  an  official  of  the  defendant  company; 
that  the  premises  were  held  by  the  defendant  under  said  lease 
ever  since  the  first  day  of  the  term  in  said  lease  mentioned  until 
the  end  thereof:  and  that  it  paid  rent  for  said  premises  in 
accordance  with  and  under  the  terms  and  conditions  of  the  said 


294  ANNUTATKU    FUUil.S   OF    I'LEADINU    AND    PKACflCE 

lease  mentioned   until   the   tirst  day  of    All   of 

which  the  plaintiffs  were  ready  to  verify  and  prayed  judgment 
for  the  damages  set  forth  in  the  declaration. 

This  plaintirt*  says  that  the  said  eaus**  came  on  to  be  tried  in 

said court  before  the  honorable one 

of  the  judges  thereof,  at  the    term  of  said  court 

,  11).  .  ;  that  a  trial  by  jury  was  duly  waivni 

by  the  respective  parties;  that  testimony  was  otTered  upon  the 
issues  presented  by  the  plaintitVs;  and  that  the  court  duly  ren- 
dered a  jud^finent  in   favor  of  the  plaintiffs  and  a>;ainst  said 

defendant  for  the  total  sum  of dollars  for  the  rent 

accruing'  under  the  terms  of  said  lease  up  to  the  time  of  the 
comirienceiiienf  of  said  a<-tion,  with  interest  on  the  several  instal- 
ments from  the  dates  at  which  they  severally  beeame  due  to  the 
day  of  the  judK'ment  rendereil. 

That  in  said  cause  the  tlefendant  in  ilue  season  tiled  its  motion 
for  a  new  trial,  and  upon  the  same  beinj?  overruled  and  denied 
by  the  court  it  presented  ami  filetl  its  bill  of  exeeptions  duly 
sijjned  and  sealed  eontaininjf  all  of  tin*  evidence  off«'red  i)y  either 
party  and  all  of  the  |)roc»'e(liii^,'s  in  said  trial,  and  it  also  tiled 
its  appeal  bond,  as  is  required  by  law  and  the  court's  order,  antl 

appealed  the  said  cause  to  the  appellate  court  for  the 

district  of  Illinois;  that  the  said  appeal  was  duly  perfected  in 

said  court  as  case  number    ;  that  said  appellate 

court  had  full  jurisdiction  of  saiil  cause  on  appeal  and  duly  con- 
sidered the  said  appeal ;  and  that  at   its   term, 

II)..,  it  found  and  adjud^'eil  that  there  was  no  error  in  said 
judgment  and  record  in  saiil  court  hereinbe- 
fore recited,  and  aflirmed  the  said  judgment  of  said  court. 

That  thereupon,  the  said  defendant  appeale<l  said  cause  from 
said  decision  and  judgment  of  the  said  appellate  court  to  the 
supreme  court  of  Illinois  and  tiled  the  necessary  and  proper 
bond  and  records,  briefs  and  notice  to  give  siiid  court  full  juris- 
diction of  siiid  appeal ;  that  the  saiil  supreme  court  ac(iuirt?d  and 

had  jurisdiction  of  said  cause  at  its term,  lH.  ., 

case  number ;  and,  that  said  court  duly  considered 

said  appeal  and  found  and  adjudged  that  there  was  no  error 
in  said  record  and  judgment,  and  atTirmed  the  said  judg- 
ment of  the court  and  the  said  judgment  of  said 

appellate  court,  so  that  the  said  judtrment  of  the  said 

court  was  and  is  final  and  conclusive  of  all  matter  of  law  and  fact 
therein  adjudicated,  and  has  never  been  reversed  or  in  any  way 
impaired  or  modified :  a  copy  of  which  said  judgment  is  filed 
tierewith. 

That  the  said  action  was  upon  the  same  lease  upon  which  the 
present  suit   is  brought  and  was  to  recover  rent  due  under 

the  terms  thereof  from up  to ,  being  the 

amount  of  rent  accrued  and  due  under  said  lease  at  the  time  of 
the  commencement  of  that  suit. 

That  the  present  action  is  to  recover  the  rent  due  under  said 


DEFENSES  AND  PLEAS  IN  BAR  295 

lease  from to ;  that  the  questions  as 

to  the  execution  of  said  lease  by  the  corporation,  its  consideration, 
the  adoption  and  ratification  of  the  same  by  the  said  corporation 
defendant,  and  as  to  its  being  the  lease  of  the  defendant  and 
binding  upon  it  were  necessarily  involved  in  said  cause  under  the 
issue  as  made  therein  and  were  considered  and  determined  by 

said  court  on  the  trial  of  said  cause,  and  in  the 

appellate  and  in  the  supreme  courts  respectively ;  that  it  was 

considered  adjudged  and  determined  by  said court 

at  its term,  19.  .,  and  said  court  did  at  said 

term  determine  and  adjudge  in  said  cause  that  the  lease  set  up 
in  said  cause  was  the  lease  of  the  defendant  duly  executed  by 
it,  the  said  company,  and  ratified  and  adopted  by  it;  that  it  was 
bound  by  the  terms  and  conditions  thereof  and  indebted  to  the 
plaintiffs  for  the  rent  accruing  and  accrued  under  the  terms  of 
said  lease;  and  that  it  was  in  law  bound  to  pay  the  same. 

The  (|uestions  as  to  the  right  of  tlie  phiintiffs  to  recover  from 
said  defendants  of  said  lease  for  the  rent  accrued  and  to  accrue 
and  the  acceptance  of  said  lease  and  the  occupancy  of  said 
premises  by  the  defendant  under  the  same  were  necessarily  in- 
volved and  decided  in  said  action  and  the  court  did  determine 
said  (piestions  and  i.ssues  in  favor  of  the  plaintiffs  and  against  the 
defendant,  so  that  the  delVruiant  in  this  aetion  is  estopped  from 
dis{niting  the  execution  and  validity  of  .siiid  lease  as  well  as  from 
disi)uting  all  right  of  the  plaintitf.s  to  recover  the  rent  sued  for 
in  this  action  by  reason  of  the  invalidity  of  said  lease. 

Wherefore,  they,  the  plaintiffs,  plead  said  judgment  and  pro- 
ceedings as  an  estoppel  against  the  defendant,  and  pray  that 
their  damages  as  set  forth  in  their  declaration  may  be  adjudged 
to  them,  etc.»»^ 


Plaintiff's  attorney. 

Judgment  against  partner 

(Commence  as  in  Section  887)  That  the  notes  declared  and 
sued  upon  in  said  cau.se  of  action  were  each  given  for  a  partner- 
ship indebtedness  of  the  firm  of  F.  S.  &  R.,  and  that  said  part- 
nei-shij)  was  composed  of  the  defendants  herein,  D.  F.,  A.  S.  and 
this  defendant.  II.  R.,  and  that  said  notes  and  each  of  them  w'ere 
signed  in  the  firm  name  of  F.  S.  &  R.,  and  not  in  the  individual 
names  of  the  members  of  said  firm ;  and  that  after  the  giving  of 
said  notes,  one  J.  S.,  who  was  the  husband  of  the  said  plaintiff, 
was  the  owner  of  said  notes,  and  while  he,  the  said  J.  S.,  was  the 
owner  of  said  notes,  he,  the  said  J.   S.,  heretofore  impleaded 

this  defendant.  II.  R..  in  the court  of 

county,  in  the  state  of at,  to  wit,  the , 

"T  Louisville,  N.  A    &  C.  Ry.  Oo. 
V.  Carson.  169  III.  247  ri897). 


29G  ANNOTATED   FORMS  OF   PLE.\DING    AND   PILVCTICB 

19.  .,  term  of  said  court  in  a  plea  of  trespass  on 

the  case  on  promises,  to  the  dama^,'*-  of  tlif  plaintiff  of,  to  wit, 

$ ,  for  not  performing  the  very  same  prnmist*  in 

said  declaration  mentiont-d;  and  that  siieh  procft-din^fs  wt-re 
thereupon  liad  in  tliat  plea,  that  afterwards  and  in  to  wit,  said 

,   VJ.  .,  term  of  saiil    court  of  sunl 

county,  in  the  state  of hy  the  consid- 
eration and  jud^'inent  of  saiti  eourt,  the  said  plaintiff,  J.  S., 
recovered  against  this  defendant,  II.   H.,  the  sum  of.  to  wit. 

$ danul^;es,  as  well  as  the  costs  of  the  plaintitT  in 

that  hehalf,  whereof  this  defendant,  H.  H..  was  eonvicted,  as  hy 

the  record   thereof  still   remaining;  in   .sjiid    court 

more  fully  ajjpears;  which  said  judtrment  remains  in  full  force 
and  effect. '■'"*     (Conclude  as  in  Sfction  S!>M) 

788  Res  judicata;  estoppel  by  judgment,  proof 

I'arol  evidence  is  inadmi.ssihle  to  contradict  a  record  which 
shows,  on  its  face,  the  cau.se  of  action,  the  jrround  of  defense,  or 
other  matter  in  question  ;  such  evidence  is  admi.ssihle,  however,  to 
identify  the  parties,  the  cause  of  action,  the  defense,  or  other 
litigated  matter  when  the.se  do  not  appear  upon  the  record.'®* 
So,  the  presumption  that  an  item  of  evidence  formed  a  part  of 
a  general  judgment  may  be  overcome  by  parol  proof.-*^** 

789  Res  judicata;  estoppel  by  verdict 

An  estoppel  by  verdict  is  where  a  second  action  is  between  the 
same  parties  or  privies  concerning  the  same  subject  matter  but 
upon  a  ditVerent  claim  or  cause  of  action,  in  which  case  the 
estoppel  is  conclusive  only  as  to  the  matters  in  issue  or  upon 
controverted  points  settled  by  the  finding  of  the  verdict  rendered 
in  the  original  action  irrespective  of  the  (luestion  whether  the 
cause  of  action  is  the  same  in  both  suits  or  not. 

Upon  such  an  estoppel  the  precise  question  adjudicated  must 
clearly  be  shown,  either  by  the  record  or  by  extrinsic  evidence, 
the  inquiry  being  not  what  might  have  been,  but  what  was  actu- 
ally litigated  and  determined  in  the  original  suit.  In  case  of 
doubt,  as  when  a  general  verdict  covering  several  issues  was  ren- 
dered, the  whole  subject  matter  of  the  action  is  at  large  and 
open  for  any  new  contention.-*^'     No  estoppel  by  verdict  exists 

198  Fleming  v.  Ross,  225  111.  149  200  People  v.  Becker,  253  111.  m, 
(1907).  134   (1912). 

199  Gray  v.  Gillilan,  15  111.  455;  201  Chicago  Theological  Seminary 
Rubel  V.  Title  Guarantee  &  Trust  v.  People.  189  111.  443  et  seq. ;  Chi- 
Co.,  199  111.  110,  114  (1902).  cago   Title  &   Trust   Co.   v.    Moody, 


DEFENSES  AND  PLEAS  IN  BAR  297 

where  the  subject  matter  of  the  two  proceedings  is  not  the  same, 
where  the  parties  are  different,  and  where  the  former  case  was 
decided  under  a  materially  different  law. 202 

A  general  verdict  and  judgment  based  upon  several  distinct 
and  separate  defenses  is  prima  facie  evidence  that  all  of  the 
issues  presented  by  the  pleadings  were  found  in  the  party's 
favor  for  whom  the  verdict  was  rendered,  when  the  evidence  was 
heard  upon  all  of  the  issues  thus  presented;  and  the  burden  of 
proving  that  the  verdict  was  rendered  upon  an  issue  which  pre- 
sented only  a  temporary  bar,  and  that  such  a  bar  has  since  been 
removed,  or  has  ceased  to  operate,  devolves  upon  the  opposite 
party.2"3  Jn  Michigan  the  foregoing  rule  was  rejected  in  a 
case  which  did  not  warrant  its  application,  and  this  case  should 
not,  therefore,  be  considered  as  authority,  or  as  decisive  of  the 
qucstion.2"* 

790  Res  judicata;  estoppel  against  estoppel 

An  estoppel  against  an  estoppel  is  equivalent  to  no  estoppel, 
as  where  a  defendant  sets  up  one  judgment  as  an  estoppel  and 
the  plaintiff  replies  with  a  later  judgment  as  an  estoppel  against 
the  defendant's  judgment,  the  one  estoppel  neutralizes  the  other, 
and  the  whole  (juestion  is  left  to  be  tried  over.-^^  But  this  rule 
has  no  applieation  to  an  estoppel  of  a  judgment  of  an  inferior 
court  by  an  estoppel  of  a  later  judgment  of  a  superior  court.  In 
estoppels  of  this  kind  the  la.st  judgment  controls.-^*^ 

791  Set-off  defined 

Set-off  is  a  statutory  remedy  in  the  nature  of  a  cross  action, 
which  permits  a  debt  or  demand  to  be  set  off  against  another  and 
the  recovery  of  a  judgment  by  the  party  in  whose  favor  a  bal- 
ance exists.-*^'  A  plea  or  notice  of  set-off  is  allowed  for  the  pur- 
pose of  setting  up,  by  way  of  counterclaim,  independent  causes  of 
action  against  the  plaintift'.^"^    The  items  of  set-off  are  regarded 

233   m.  634.   63G    (1908);    Chicago  v.  People,  189  111.  447;  Bateman  v. 

V.   Partridpe.  248  111.  446.  Grand  Rapids  &  Indiana  R.  Co.,  96 

203  Park  Rid^»'  v.  Winner,  2r,3  111.  Mich.  41,  44."i  (1893). 
434,  437    (1912).  207  Ward  v.  Fellers,  3  Mich.  281, 

203Rhoads  V.   Metropolis,   144  111.  286     (18.54);     M'Hardv     v.     Wads 

580,  ')87   (IMOl).  worth,    8    Mich.    349,    3.53     (1860); 

20*  Hoffman     v.     Silverthorn,     137  Pettis  v.  Westlake.  3  Scam.  53o,  5.5S 

Mich.  60,  6.5  (1904).  (1842);    Peacock   v.   Haven,  22   111. 

205  Chicago   Theological  Seminary  23   (1859). 
V.  People,  189  111.  446.  2o»  Brennan  v.  Tietsort,  49  Mich. 

208  Chicago   Theological   Seminary  397,  398   (1882), 


298  ANN'OTATKD    FuKMS   OK    TLKADING    AND    li. 


as  counts  in  a.  declaration.-""  The  object  of  a  8et-ufT  is  to  inform 
the  opposite  party  of  the  claim  iiuiUe  therein  aiiJ  to  limit  the 
evidence  thereto.- >" 

792  Set-off,  law  governing 

At  conunon  law  no  .set-otT  HK"i'>«t  a  plaintiff's  claim  was  jx-r- 
missible.-"  The  ri^ht  to  plea»l  a  s«'t-otT  is  governed  by  the  law 
of  the  state  where  the  action  is  brought.' '^^ 

793  Set-off;  demand,  nature 

Tlie  (l.iiianils  subject  to  setoff  are  only  such  M  are  existing 
eau.ses  of  action  in  the  defendant's  favor  at  the  time  the  suit  is 
commenced.-*^  A  claim  which  is  not  n  subsisting  cans*-  of  action 
in  a  party's  own  favor  cannot  be  s<'t  off.-**  A  <lebt  or  denumd 
which  has  accrued,  or  a  juilgment  which  has  U'en  recovered 
aft.r  tile  bringing  of  the  suit  cannot  \k'  set  ofT.-'*  A  demand 
wliith  has  grown  out  of  a  contract  cannot  Ih»  8«'t  off  in  an  action 
upon  a  tort.-'"  A  di  luand,  to  W  subject  to  s«-t-otT,  must  Ihj 
mutual  between  the  parties  to  the  record,  or  the  parties  in  in- 
terest, juid  in  their  own  riu'ht.-''  An  individujd  demand,  there- 
fore, cannot  be  set  off  against  a  joint  denumd  of  the  plaintiff -'* 
Nor  can  a  joint  imlebtedneas  W  set  off  against  a  wparate  de- 
mand.-"* A  partner's  intlividual  indebti  tlncs.H  cannot  be  set  off 
against  an  action  based  upon  an  indebtedn«'ss  to  the  partnership 
of  which  the  partner  is  a  member.^^"  An  indiviilual  indebted- 
ness of  an  executor  or  lui  admini.strator  cannot  be  set  off  against 
a  debt  due  the  estate.--'     A  debt  due  from  an  intestate  in  his 

:"t>  Minoral  Point  R.  Co.  v.  Keep,  !»•  Pooria   ft   Oquawka    R.    Co.    v. 

22   111.  \\   li>   (1S59).  Ncill,   IB   111.  265».  271    (ITj.'));   Sec. 

2»o  Walter  Cabinet   Co.  v.  Russell,  47.   Praotire  act    1907    (III.);   Orepjf 

250  111.  4U>,  420  (1911).  v.  Philips.  Hreese.  143  (1S2.'))  ;  Buri: 

2n  Morton  v.  Bailey,  1  Scam.  213  win  v.  Rabcock.  11  111.  28  (1849). 
(1S35).                           '  -'*  Priest    v.    Doilsworth,    23.')    III. 

2J2  Loathe  V.  Thomas.  218  111.  246,  613.     61.'}.    616;     Heokenkemper    v. 

252   (190.5).  Dinjrwehrs.  32  III.  538.  .540   (1S63);, 

213  Pettis    V.    Westlake.    3    Scam.  Sec.  47,  Practice  act  1907  (111.). 
535.  538  (1842)  ;  Kellv  v.  Garrett,  1  2i»  Hilliard  v.  Walker,  11  111.  644 
Gilm.  649,  652   (1844).  (1850). 

214  Avres  V.  McConnell.  15  111.  230,  2:0  Gregg  v.  James,  Breese,  143 
232    (1853).  (1825). 

215  Irvin  V.  Wright,  1  Scam.  135  221  Wisdom  v.  Becker,  52  111.  342, 
(1834);   Sec.  47,  Practice  act   1907  346   (1869). 

(111.). 

210  Stow  V.  Yarwood,  14  111.  424, 
426    (1853). 


DEFENSES  AND  PLEAS  IN  BAB  299 

life  time  cannot  be  set  off  in  an  action  upon  a  demand  accruing 
to  an  administrator  after  the  death  of  an  intestate,  as  the  allow- 
ance of  the  si^-t-ofi  would  interfere  with  the  pro  rata  distribution 
of  the  intestate  estate  in  case  of  its  insolvency.222  i^  an  action 
by  or  on  behalf  of  an  insolvent  creditor,  the  defendant  may  set 
off  a  demand  against  the  plaintiff  subsisting  at  the  time  of  the 
bringing  of  the  suit,  and  thereby  avoid  the  taking  of  a  pro  rata 
dividend  upon  such  demand.--^ 

794  Set-off;  demands,  judgments,  appeal 

A  judgment  whieh  has  been  appealed  from  and  stayed  by 
supers€(Uas  cannot  be  pleaded  as  a  set-off,  but  the  damages  for 
whieli  the  judgment  was  obtained  may  be  thus  pleaded.--^ 

795  Set-off;  demands,  judgment,  domestic  and  foreign 

Demands  upon  domestic  or  foreign  judgments  may  be  set  off, 
under  Illinois  statute,  against  demands  upon  simple  contracts.-^^* 

796  Set-off ;  demands,  unliquidated  damages 

Unliquidated  damages  growing  out  of  the  same  transaction 
are  subject  to  8et-off.22'J  Unliquidated  damages  which  do  not 
arise  from,  or  which  are  not  eonnected  with,  a  covenant,  contract, 
or  tort  sued  upon,  cannot  be  set  oft'.--'  This  is  so  notwithstand- 
ing the  present  Illinois  statute.^-"  Damages  growing  out  of  a 
breach  of  contract  which  are  too  remote  and  uncertain  cannot 
be  made  the  basis  of  a  set-otT.--»  In  actions  upon  a  contract  no 
set-off  can  be  claimed  for  unliquidated  damages  resulting  from 
a  violation  of  an  entirely  distinct  and  independent  contract  in 
nowise  connected  with  the  contract  sued  upon.^^o  A  claim  for 
damagt^s  growing  out  of  a  breach  of  contract  between  third  par- 
ties cannot  be  set  off  under  an  assignment  from  one  of  them,  for 

«s»  Newhall  V.  Turnov.  14  111.  338,  500     (1867);    Hawks    v.    Lands,    3 

341    (ISSS).  Gilm.   227,   232    1846). 

223  Kelly  V.  Garrett.  1  Gilm.  649,  228  Clause     v.     Bullock     Printing 

•53  (1844).  Press  Co.,  118  111.  612.  617   (1886); 

«"  King   V.   Bradley.   44    111.   342,  Ewen   v.    Wilbor,   208   111     492,   507 

844    (1867).  ri9n4)  ;  Higbie  v.  Rust,  211  111.  333, 

235  Leathe  v.  Thomas.  218  111.  252.  338    (1904);    Sec.   47,  c.   110,  Prac- 

22«  Sanger  v.  Fincher.  27  111.  346,  tice  act   1907   (111.). 

348    (1862);    Sec.    47.    Practice   act  220  Williams  v.  Case,  79  HI.   356. 

1907   (111.).  358   (1875). 

"TDe    Forrest    v.    Oder,    42    111.  asoHigbie  v.  Rust,  211  111.  338. 


300  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

the  reason  that  the  claim  can  be  enforced  only  in  the  name  of 
the  assignor  who  cannot  be  a  party  to  the  record.-^^ 

797  Set-off,  nominal  plaintiff 

In  actions  which  are  prosecuted  solely  for  another's  benefit, 
a  demand  existing  against  the  real  i)arty  in  interest,  whelher  he 
is  use  plaintiff,  or  the  party  whom  the  plaintiff  represents,  may 
be  set  off.--^- 

798  Set-off,  pendency  of  action  or  appeal 

The  right  of  set-off  is  not  affected  by  tlic  pendency  of  an  action 
for  the  claim  to  be  set  oft"  or  an  appeal  from  a  judgment 
thereon. -^3 

799  Set-off,  pleading'  and  practice 

In  courts  of  record,  including  the  probate  court,  a  defendant 
is  not  bound  to  plead  a  set-off,  the  statute  of  set-off  being  merely 
permissive.2"^-»  But  if  pleaded,  a  set-off  must  be  specially  pleaded, 
or  notice  in  writing  of  set-oft'  must  be  given  under  the  general 
issue.235  A  notice  of  set-off  is  inappropriate  without  a  plea  of 
the  general  issue  or  that  of  payment  in  ex  contractu  actions. 
The  notice  and  the  plea  must  be  filed  together.^sc  The  defense 
of  set-off  is  pleadable  orally,  in  West  Virginia,  provided  a  bill 
of  particulars  is  filed  under  the  statute  to  show  the  character 
and  the  amount  of  the  set  off.-^''' 

800  Set-off ;  plea,  requisites 

A  plea  of  set-off  must  aver  that  th?  amount  sought  to  be  set 
off  is  still  due  and  unpaid.-^s  A  plea  based  upon  unliquidated 
damages  must,  under  Illinois  statute,  aver  that  the  damages  grew 
out  of  and  were  a  part  of  the  contract  sued  upon.239 

231  Zuckermann  v.  Solomon,  73  111.  23^  Bailey  v.  Valley  National 
130,  131   (1874).                                            Bank.  127  111.  332,  336  (1889);  See. 

232  Rothschild  V,  Bniscke,  131  111.       47.  Practice  act  1907   (111.). 

265    270  -^^  National  Vallev  Bank  v.  Hoiis- 

233Gaddis  v.  Leeson,   55  111.   522  ton,  66  W.  Va.  336,"  342   (1909). 

ng70).  238  De  Forrest  v.  Oder,  42  111.  502  ; 

234  Morton  v.  Bailey,  1  Scam.  213  McCord  v.  Crooker,  83  111.  556,  561 
(1835):   See.  47,  Practice  act  1907  (1876). 

(Ill  )     '  239  DeForrept  v.  Oder,  42  111.  502; 

235  Cox  V.  Jordan,  86  111.  560,  Sec.  47,  Practice  act  1907)  (111.); 
562   (1877).  McCord  v.  Crooker,  83  111.  561. 


DEFENSES  AND   PLEAS  IN   BAR  301 

801  Set-off;  replication,  requisites 

A  plaintiff  has  a  right  to  reply  a  set-off  against  the  defend- 
ant's set-off  for  the  sole  purpose  of  defeating  that  set-off,  the 
latter  set-off  being  considered  as  a  cross  action  in  which  the 
plaintiff  stands  in  the  position  of  a  defendant.^^o  A  replication 
to  a  plea  of  set-off  setting  up  matter  of  counter  claim  against  the 
set-off  must  pray  judgment  as  claimed  in  the  declaration  to 
avoid  a  departure.-^ ^ 

802  Set-off,  withdrawal 

A  court  may,  in  its  discretion,  permit  or  refuse  the  with- 
drawal of  a  plea  of  set-oft'.-^^ 

803  Set-off,  proof 

A  defendant  is  bound  to  prove  his  set-off  to  the  same  extent 
as  he  would  have  to  prove  the  demand  had  he  instituted  an  action 
upon  it.-^*"^  He  is  also  bound  to  prove  the  genuineness  of  his 
demand  and  that  it  was  due  and  unpaid  at  the  time  of  the  com- 
mencement of  the  suit.-^* 

804  Set-off,  judgment 

A  defendant  is  entitled  to  judgment  for  whatever  sum  is 
found  to  be  due  him  over  and  above  the  plaintiff's  demand.^^^ 
Upon  the  plaintiff's  set-off  against  a  defendant's  set-off,  a  plain- 
tiff is  not  entitled  to  a  judgment  for  the  excess  of  his  set-off  over 
that  of  the  defendant,  for  this  would  be  a  departure  from  the 
declaration.-^^ 

805  Stare  decisis 

The  doctrine  of  stare  decisis  has  no  application  to  cases  which 
have  been  wrongly  decided  and  the  parties  are  entirely  differ- 
ent.247 

240  Cox  V.  Jordan,  86  111.  560,  565  244  Pettis  v.  Westlake,  3  Scam, 
(1877);   Sec.  47,  Practice  act  1907       535,  538  (1842). 

(111.).  245  Sec.     47,     Practice     act     1907 

241  Cox  V.  Jordan,  supra.  (Ill-)- 

242  Mineral  Point  R.  Co.  v.  Keep,  246  Cox  v.  Jordan,  86  111.  565. 

22  111.  9.  19   (1859).  247  Bay  Island   Drainage   District 

243  Kelly  V.  Garrett,  1  Gilm.  649,  v.  Union  Drainage  District,  255  111. 
652  (1844).  194,  202   (1912). 


302  ANNOTATED    FORMS   OF    I'LEADINO    AND    PRACTICE 

806  Stated  accounts,  taxing  districts 

Settlements  with  taxing  districts  and  reports  to  the  governor 
are  not  stated  accounts  and  final  settlements  between  the  state 
and  the  taxing  districts,  and  will  not  preclude  their  examination 
and  investigation,  in  the  absence  of  contract  or  statute  which 
expressly  or  impliedly  requires  the  stat^Muent  of  accounts  and 
their  actual  investigation  and  approval  before  settlement.-*** 

807  Statute  of  limitations,  waiver 

A  defendant  waives  his  right  to  plead  the  statute  of  limitations 
by  pleading  to  the  merits  without  attaching  a  plea  or  notice 
claiming  a  bar  of  the  action  under  the  statute;  and  a  court  s 
denial  of  leave  to  interpose  such  a  defense  after  a  general  issue 
alone  has  been  pleaded  is  final  and  is  not  reviewable  on  appeal 
or  error  under  Michigan  practice.--*" 

808  Statute  of  limitations,  burden  of  proof 

The  statute  of  limitations  is  an  allirnuitive  defense  and  the 
burden  of  proving  it  is  on  the  party  pleading  it.-'^^  In  IMichigan 
the  reverse  is  the  rule.  There,  the  plaintift'  and  not  the  defend- 
ant has  the  burden  of  proving  that  his  action  was  commenced 
within  the  statutoiy  period  under  a  plea  or  notice  of  the  statute 
of  limitations.251 

809  Statute  of  limitations ;  pleading,  time 

•   A  plea  of  the  statute  of  limitations  must  be  interposed  at  the 
earliest  stage  of  the  pleading  which  discloses  its  applicability.-^^ 

810  Statute  of  limitations ;  pleading,  generally 

The  statute  of  limitations  must  be  specially  pleaded  at  com- 
mon law  or  noticed.253  The  defense  of  limitations  cannot  be 
raised  by  demurrer  to  a  pleading  even  where  it  shows  on  its 

248  People  V.  Whittemore,  253  111.  163   (1907):  Goodell  v.  Gibbons,  91 

378,  383    (1912);   Sees.  20,  21.  art.  Va.  608.  610  (1895). 

5,  Const.  1870    (HI.);  Chapter  130,  251  A>Tes    v.    Langdon,    71    Mich. 

Eev.   Stat.    (Kurd's    Stat.    1911,   p.  594,  599    (1888). 

2265)  252Wiard   v.    Semken,    8   Mackey, 

249Eipley  V.  Davis,   15  Mich.  75,  475,  480    (D.  C.   1891). 

78     (1866);    Shank    v.    Woodworth,  253  Shank  v.  Woodworth,  111  Mich. 

Ill  Mich.   642,  643    (1897).  642    (1897);    Whitworth   v.    Pelton, 

2B0Schell  V.  Weaver,  225  lU.  159,  81  Mich.  98,  101   (1890). 


DEFENSES  AND  PLEAS  IN  BAR  303 

face  that  the  action  is  barred ;  -^^  nor  can  it  be  interposed  by 
motion  to  dismiss.-^^ 

811  Statute  of  limitations;  pleading",  municipal  corporations 

The  defense  of  the  statute  of  limitations  is  available  to  munici- 
pal corporations.256 

812  Statute  of  limitations;  pleadingf,  amended  and  additional 

counts 

The  statute  of  limitations  is  a  good  defense  to  a  new  cause  of 
action  which  is  stated  for  the  first  time  in  an  amended  or  addi- 
tional count  and  the  period  fixed  by  the  statute  of  limitations 
has  expired  at  the  time  such  count  has  been  filed,  because  as  to 
such  cause  of  action,  the  suit  is  regarded  as  having  been  com- 
menced at  the  time  of  the  filing  of  the  amended  or  additional 
count :  the  statute  of  limitations  is  no  defense  to  a  re-statement 
of  the  cause  of  action  which  was  previously  stated  in  counts  that 
were  filed  within  the  period  of  limitation. -'^7  tj^^  omission  from 
an  additional  or  amended  count  of  unessential  matter  does  not 
constitute  the  statement  of  a  new  cause  of  action.^^s  An  amended 
count  or  declaration  does  not  state  a  new  cause  of  action  if  it 
requires  the  same  evidence  to  sustain  it  as  it  would  have  to  be 
interposed  under  the  original  count  or  declaration.^^^  A  de- 
fendant has  a  right  to  plead  the  statute  of  limitations  without 
obtaining  leave  of  court,  to  an  amended  count  or  declaration 
which  presents  a  new  cause  of  action.^eo     The  allowance  to 

254  Heimberger  v.    Elliot    Frog   &  (1906);    Illinois   Central   R.    Co.   v. 

Switch  Co.,  245  111.  448,  450  (1910)  ;  Cobb,  Christy  &  Co.,  64  111.  128,  140, 

Peterson  v.  Manhattan  Life  Ins.  Co.,  141  (1872)  ;  Fish  v.  Far^  '1,  160  111 

244  111.  329,  333,  334  (1910)  ;  Gun-  236,  247  (1896)  ;  Gorman  V.  Neway- 

ton    V.    Hughes,    181    111.    132,    135  go  Circuit  Judge,  27  Mich.  138,  140 

(1899);     Lesher    v.    United    States  (1873)  ;  Richter  v.  Michigan  Mutual 

Fidelity    &   Guaranty   Co.,    239    111.  Life    Ins.    Co.,    66    111.    App.    606 

502,  508  (1909) ;  Wall  v.  Chesapeake  (1896) ;  Gorman  v.  Newavgo  Circuit 

&  Ohio  R.  Co.,  200  111.  63,  67  (1902).  Judge,  supra;  Muren  Coal  &  Ice  Co. 

255Houghland    v,    Avery    Coal    &  v.  Howell,  217  HI.  190,  196  (1905"); 

Mining     Co.,     246     111.     609,     619  Cicero    v.    Bartelme,    212    111.    256, 

(1910).  260    (1904);    St.   Louis   Merchants' 

256  Leroy  V.  Springfield,  81  m.  114  Bridge     Terminal     Ry.     Ass'n.     v. 
(1876).  Schultz,  226  111.  409,  413   (1907). 

257  Devaney  v.  Otis  Elevator  Co.,  258  Devaney  v.  Otis  Elevator  Co., 
251  lU.  28,  33   (1911)  ;  Swift  Co.  v.  251  111.  28,  34. 

Gaylord,   229  111.  330,  332    (1907);  259  Swift  Co.  v.  Gaylord,  229  111. 

Kenneally  v.  Chicago,  220  111.  485,  330,  335  (1907). 

506    (1906);    Heffron    v.   Rochester  260  Maegerlein  v.  Chicago,  237  111. 

German  Ins.  Co.,  220  HI.  514,  518  159,  164  (1908). 


304  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

amend  a  declaration  and  the  defendant 's  failure  to  object  to  the 
same  will  not  preclude  the  defendant  from  afterward  pleading 
the  statute  of  limitations  to  the  declaration.-'^^ 

813  Statute  of  limitations ;  plea,  requisites,  traverse 

A  plea  of  the  statute  of  limitations  merely  asserts  the  statutory- 
bar  of  limitations,  without  traversing  or  confessing  and  avoid- 
ing the  cause  of  action.-"-  As  many  pleas  of  the  statute  of  limi- 
tations are  necessary  as  there  are  counts  in  a  declaration  which 
allege  separate  and  distinct  causes  of  action  that  are  barred.283 
The  plea  is  demurrable  if  it  is  interposed  to  all  of  the  counts 
of  a  declaration  and  is  a  defense  only  to  some  of  them.-''* 

814  Statute  of  limitations;  plea,  requisites,  period  of  limita- 

tions 
A  plea  or  notice  of  the  statute  of  limitations  must  refer  to 
the  date  or  the  time  of  the  commencement  of  the  suit  and  not 
to  the  time  of  the  filing  of  the  declaration  or  amended  declara- 
tion.^^s 

815  Statute  of  limitations ;  plea,  requisites,  statute,  exception 
A  defendant  who  claims  under  a  statute  of  limitations  which 

is  subject  to  an  exception  may  rely  upon  the  general  provision 
of  the  statute,  without  also  bringing  himself  within  the  excep- 
tion.266 

816  Statute  of  limitations;  plea,  requisites,  rejection  of  claim, 

notice 
A  plea  of  limitations  relying  on  the  failure  to  bring  suit  within 
a  certain  period  of  the  rejection  of  a  claim  must  allege  the  giving 
of  notice  to  the  plaintiff  of  such  rejection.-''" 

817  Statute  of  limitations ;  plea,  requisites,  foreign  judgment, 

residence 

In  :Mississippi,  a  plea  of  the  statute  of  limitations  of  three 
years  against  an  action  upon  a  foreign  judgment  must  aver  the 

261  Heffron   v    Rochester   German  265  'Wilcox    v.    Kassick,    2    Mich. 

Ins.  Co.,  220  Ili.  514,  518    (1906).  16-5,  178   (1851). 

262Wiard   v.    Semken,    8    Mackey,  26g  Armstrong  v.   "Wilcox,  57  Fla. 

480  30,  34  (1909)  ;  Hyman  v.  Bayne,  83 

263  Pennsylvania  Co.  v.  Sloan,  125  111.  256,  264  (1876). 

Ill    72    81    (1888).  2G7  Switchmen 's     L^nion    v.     Cole- 

264  Illinois  Central  E.  Co.  v.  Swift,      house,  227  111.  561  (1907). 
£13  111.  307,  317   (1904). 


DEFENSES    .IXD   PLEAS   IN    BAR 


305 


residence  of  the  defendant  at  the  time  of  the  institution  of  the 
suit. -"^8 

818  Statute  of  limitations;  plea,  requisites,  amended  declara- 

Hon 

A  plea  of  thd  statute  of  limitations  to  an  amended  declara- 
tion need  not  expressly  state  that  the  original  declaration  failed 
to  set  forth  a  cause  of  action.-'"^ 

819  Statute  of  limitations,  replication 

A  plaintiff  must  reply  to  a  plea  of  the  statute  of  limitations 
by  showing  that  the  cause  of  action  is  within  some  of  the  excep- 
tions to  the  statute,  or  by  setting  up  matter  which  prevents  a 
bar  from  attaching;  he  cannot  avoid  the  statute  by  amending 
his  declaration.-'-o  A  replication  to  a  plea  of  the  statute  of 
limitations  which  is  based  upon  fraud  must  set  out  clearly  the 
facts  and  circumstances  which  amount,  in  law,  to  fraud  •  and 
if  the  replication  fails  to  set  out  these  facts,  it  is  bad  on  demur- 


rer. 


820  Statutes,  person  objecting 

The  constitutionality  of  an  act  cannot  be  questioned  by  those 
whose  rights  the  act  does  not  affect.2'2 

821  Statutes;  objections,  class  legislation 

A  law  which  is  general  in  its  nature  and  uniform  in  its  opera- 
tion upon  all  persons  coming  within  its  scope  is  a  general  law.273 
Laws  may  be  passed  which  would  be  applicable  only  to  members 
of  a  class,  where  the  classification  rests  upon  some  disability, 
attribute  or  classification  marking  them  as  proper  objects  for 
the  operation  of  such  special  legislation,  unless  expressly  for- 
bidden by  the  constitution.274     The  legal  profession  constitutes 

fiornMA-,  ^^''^^f^/ n^I'''v.^2'^'  "-People  v.  Whittemore,  253  Ul 

lllf  V  \  ^'-  2104   .Code  1906.         378,  385  (1912)  ;  Tarantina  v.  Louis^ 
-«« McAnrlrews    v^   Chicago,    Lake      ville   &    Nashville    R.    Co.,    254   111 

f3o%4n  non^T  ^^-  ^'■'   "'  ^"-  ''^'  ^-"^l  ^^^l^). 

-on     y^%     ^         „  -''  Tarantina  v.  Louisville  &  Xash- 

1-?^  MfiSr/-  ?"Shes   181  HI.  132,  ville  R.  Co.,  254  111.  624,  630 
i.5    .1^97  ;  Lesher  v.  United  States  274  Standidge  v.  Chicago  Rvs   Co 

S0I09  flQOQr'^*^    ^'•'    '''    '"•       l'^  "'•  -^-^'^-^^   ^1912)^  Rogers  v! 
:-,V'    /     ^^-    X,     V  .  ^^-    Louis-Carterville    Coal   Co,    254 

262;  268    (T907T.       ^^       '    ""^    "^-       "^-  ^^^'  ^^^  ^^^^-^' 


306  ANNOTATED    FORMS   OF    PLEADING   AND   PRACTICE 

a  special  class  for  purposes  of  legislation.-'^  For  the  prevention 
of  intoxication  and  disorderly  or  riotous  conduct  growing  out  of 
intoxication  on  railroad  trains,  it  is  reasonable  to  discriminate 
between  passengers  who  ride  in  smoking,  parlor,  interurban  or 
caboose  cars  and  day  coaches  and  those  who  ride  in  sleeping, 
dining  and  buffet  cars.-^*^ 

822  Statutes;  objections,  constitutionality,  practice 

The  constitutionality  of  a  statute  may  he  raised  by  demurrer 
to  a  declaration  founded  upon  a  statute,  or  by  an  objection  to 
evidence  offered  in  support  of  such  a  declaration,  or  by  an  excep- 
tion to  an  instruction  })ased  upon  the  unconstitutionality  of  the 
statute,  and  by  motion  for  a  new  trial.-""  The  constitutionality 
of  a  statute  must  be  first  raised  in  the  trial  court ;  as  it  will  be 
considered  to  have  been  waived,  if  not  so  raised.-^* 

823  Statutes ;  objections,  common  law  rights  and  powers,  con- 

tinuation 

The  constitutional  recognition  of  the  continuation  of  com- 
mon law  powers  are  operative  until  changed  by  the  legislature.-'^ 

824  Statutes;  objections,  directory  or  mandatory,  test 

A  provision  of  a  statute  is  directory  where  no  right  of  anyone 
interested  is  lost  or  prejudiced  by  the  failure  to  perform  the 
act  or  by  the  time  when  it  is  to  be  performed. 'So 

825  Statutes;  objections,  legislative  power 

The  legislature  may  pass  any  law  and  do  any  legislative  act 
that  is  not  prohibited  by  state  or  federal  constitutions.  An  act 
of  the  legislature  is  regarded  as  within  legislative  power,  unless 
there  is  reasonable  doubt  that  it  is  beyond  such  power.^^i 

275  Standidge  V.  Chicago  Rys.  Co.,  Cummings   v.   People,   211    111.    392, 

supra.  402   (1904). 

2T6  Tarantina  v.  Louisville  &  Nash-  279  People  v.  McCullough,  254  111. 

ville  R.  Co.,  254  111.  629;  Laws  1911,  9,  23  (1912). 

p.  462.  280  People   v.    Ellis,    253    111.    369, 

277  Christy  v.  Elliott,  216  111.  31,  377    (1912). 

36,  39  (1905).  281  People  v.  McCullough,  254  111. 

278  Vermilion  Drainace  District  v.       15,  16. 
Shockey,  238  111.   237,  239    (1909); 


DEFENSES    ^VND    PLEAS   IN    BAR  307 

826  Statutes ;  objections,  title 

The  object  of  the  title  of  an  act  is  to  give  such  a  general  state- 
ment of  the  subject  matter  of  the  act  that  would  include  all  pro- 
visions having  a  reasonable  connection  with  the  subject  matter 
mentioned  and  a  reasonable  tendency  to  accomplish  the  purpose 
of  the  act,  and  not  to  state  the  reasons  for  the  passage  of  the 
act  or  to  give  an  index  of  its  contents.  Nor  should  the  title 
cover  every  part  of  the  subject  which  might  come  within  the 
title.282 

827  Statutes;  objections,  title,  plea 

(Commence  as  in  Section  889)  That  the  statute  set  forth  in 
said  count  is  unconstitutional  and  void,  because  it  is  in  violation 
of  that  part  of  section  thirteen,  article  four  of  the  constitution 
of  the  state  of  Illinois  which  provides:    (Insert  constitutional 

provision),  in  that  the  subject  of  section ,  set  forth  in  said 

count  is  not  expressed  in  the  title  of  the  act  of  which  it  is  a  part, 
said  title  being,  "An  Act,  etc.,  in  the  state  of  Illinois,  and  to 
provide  for  the  enforcement  thereof."  (Conclude  as  in  Section 
892) 

828  Statutes;  construction,  court's  duty,  scope 

It  is  the  duty  of  courts  to  sustain  statutes  which  are  susceptible 
of  a  construction  that  would  render  them  valid,  although  another 
construction  would  render  them  invalid. -^^  Courts  have  no 
authority  to  inquire  into  the  wisdom  of  legislative  enactments.284 

829  Statutes;  construction,  presumption 

All  presumptions  are  in  favor  of  the  validity  of  legislation.285 

830  Statutes;  construction,  contemporaneous 

No  legislative  or  administrative  contemporaneous  construction 
can  be  claimed  in  defense  of  a  provision  of  which  the  meaning 
is  clear  and  unambiguous.^ss 

282  Tarantina  v.  Louisville  &  Nash-  284  People  v.  McCulliugli,  254  111. 
villa  R.  Co.  2.54  111.  628.  15. 

283  Rogers  V.  St.  Louis-Carterville  285  People  v.  McCuUough,  supra. 
Cocl    Co.,    254    lU.    104,    110,    111  280  People  v.  Whittemore,  253  IlL 
(1912).  378,  384  (1912). 


308  ANNOTATED    FORMS   OP   PI,P:AniNG    AND    PRACTICE 

831  Statutes ;  construction,  foreign  laws 

The  decisions  of  the  highest  courts  of  foreign  states  upon  simi- 
lar i^i'ovisions  of  the  constitution  and  statutes  are  persuasive, 
but  not  conclusive.-**^ 

832  Statutes ;  construction,  single  and  plural 

^Vorcls  which  import  the  siii^nUar  nuinhcr  may  be  extended  or 
applied  to  several  persons  or  thing's  unless  such  construction  is 
inconsistent  with  the  manifest  intention  of  the  legislature  or  it 
is  repupnant  to  the  context  of  the  same  statute.-®* 

833  Tender,  unliquidated  damages 

rnli(iui<late(l  damapres  cannot  be  made  the  subject  of  a  tender 
at  common  law.-*^"  A  tender  of  a  reasonable  amount  of  money 
in  i)aynient  of  unliquidated  damages  is  pennitted  by  Illinois 
statute  of  18f)l.-'''» 

834  Tender,  amount 

A  tender  nuist  cover  the  entire  indebtedness,-"^  A  tender 
made  after  suit  broucjht  must  include  a  sutlicient  sum  to  cover 
all  that  the  plaintiff  has  then  a  right  to  recover  in  debt,  interest 
and  costs.-"- 

835  Tender ;  counting  money,  waiver 

The  actual  counting  of  money  is  waived  by  making  no  request 
therefor.-"^ 

836  Tender;  admission,  scope 

A  defendant  is  concluded  by  the  amount  he  tenders;  which 
amount,  neither  a  jury  nor  a  judge  can  alter.-''-* 

287  First  Consrregational  Church  v.  291  Cilley  v.  Hawkins,  48  111.  308, 
Board  of  Review,  254  111.  220,  225       312    (186S). 

(1910)  202Sweetland    v.    Tuthill,    54    111. 

288  Chicago    &-    W.    T.    E.    Co.    v.       215,216  (IS'O). 

Heidenreich,      254     111.      231,     235  293  Conway    v.    Case,    22    111.    127, 

(1912).  138    (18.59). 

289  Cillev  V.  Hawkins,  48  111.  308,  294  Monroe  v.  Chaldeck,  78  111. 
31"   (1868)  429.  432   (1875);  Cillev  v.  Hawkins, 

290  Sec.    6,    c.    135,    Kurd's   Stat.  48  111.  308,  312   (1868). 
1911   (HI.). 


DEFENSES   AND   PLEAS  IN    BAR  309 

837  Tender,  pleading 

To  relieve  a  party  from  costs  a  tender  must  be  pleaded  and 
the  plea  must  be  accompanied  by  a  deposit  in  court  of  the  amount 
admitted  to  be  due.^^^  In  Michigan  a  tender  after  the  com- 
mencement of  suit  can  only  be  made  by  tendering  to  the  plain- 
tiff or  his  attorney  a  sum  of  money  claimed  by  the  defendant 
to  be  due  to  the  plaintiff;  which  tender  does  not  bar  the  further 
prosecution  of  the  suit,  but  has  merely  the  effect  of  stopping 
interest  and  costs,  and  of  subjecting  the  plaintiff  to  subsequent 
costs.2»^ 

838  Tender,  plea 

(Commence  as  in  Section  889)  That  before  the  making  and 
delivery  of  tlie  said  promissory  note  in  the  said  declaration  men- 
tioned, to  wit,  on  the day  of , 

19.  .,  at  the  county  of aforesaid,  the  said  plaintiff, 

in  consideration  of  the  payment  to  him,  by  the  siiid  defendant, 
of  the  sum  of dollars,  by  his  certain  bond  or  writ- 
ing obligatory,  bearing  date  the  day  and  year  aforesaid,  and 
which  is  now  here  brought  into  court,  sealed  with  the  seal  of 
the  said  plaintiff,  acknowledged  himself  to  be  held  and  firmly 

bound  unto  the  said  defendant,  in  the  penal  sum  of 

dollars,  for  the  payment  of  which  well  and  truly  to  be  made  he 
thoroughly  bound  himself,  his  heirs,  executors  and  administra- 
tors, and  every  of  them,  to  which  said  bond  or  writing  obli- 
gatory there  was  and  is  annexed  a  recital  and  condition  whereby 
it  was  recited  that  the  said  plaintiff'  had  that  day  agreed  to  sell  to 
the  said  defendant  the  following  described  lot  or  tract  of  land 

situated  in  the  city  of and  county  of and  state  of 

Illinois,  known  as  lot in  block in  the 

original  or  old  town  of (now  city  of .  . ) 

on  condition  that  the  said  defendant  should  pay  to  said  plaintiff 

the  sum  of dollars,  on  or  before  the 

day  of ,  19 .  . ,  at  the bank  in 

the  city  of aforesaid,  for  which  the  said  defendant 

had  given  his  promissory  note ;  and  it  was  provided  that  if  the 
said  defendant  should  pay  said  note  at  maturity  without  any 
delay  or  defalcation,  and  should,  in  the  meantime,  pay  all  taxes 
on  said  land,  and  the  plaintiff  should  upon  the  completion  of  said 
payment,  make,  execute  and  deliver  to  the  said  defendant,  a 
good  and  sufficient  deed,  with  full  and  proper  covenants  of  war- 
ranty, free  and  clear  of  all  incumbrance,  then  the  said  bond  or 
writing  obligatory  should  be  void,  otherwise  it  should  remain  in 

295Warth  V.  Loewenstein,  219  111.  211,  212  (1881);  (10405),  (10406), 
222,228  (1906).  C.  L.   1897    (Mich.). 

298  Snyder   v.    Quarton,    47    Mich. 


310  ANNOTATED   FORMS   OP   PLEADING   AND   PRACTICE 

full  force  aud  virtue ;  and  that  time  should  be  deemed  material 
and  of  the  essence  of  tiie  contract  in  said  bond  set  forth.  And 
the  said  deleuihmt  avers  that  he  then  and  there  paid  to  the  said 

plaintiff  the  said  sum  of    dollars  and   made  and 

delivered  to  the  said  plaintiff  his  promissory  note  for  the  said 

sum  of dollare,  payable  on  or  before  the 

day  of ,  I'J.  . ,  which  was  tlie  same  note  men- 
tioned in  the  Siiid  bond  or  writing'  obligatory,  and  in  the  said 
phiintitf's  declaration  herein,  and  was  iiuule  and  given  for  the 
consideration  aforesaid,  and  none  other. 

And  tlie  said  ilefendant  furtlier  avei-s,  that  he  paid,  and  was 
willing;  and  lialile  to  pay,  all  taxes  on  said  land,  between  the  day 

of  the  date  of  the  said  bond  or  writing  obligatory  and  the 

day  of ,  in.  .,  and  on  the  saiil  last  mentioned 

day,  was  ready  and  willing,  and  otTered  to  pay  to  said  plaintiff 

at  the  said   bank,  in  the  «iid  city  and  county  of 

,  the  said  sum  of   dollars,  and   then 

and  there  tendered  the  said  last  mentioned  sum  of  money  to 
the  .said  phuntitV,  l)ut  the  s<iid  plaintitT  then  and  there  ne^^h-cted 
and  refused,  and  hath  ever  since  negleett'd  and  refused,  to  make, 
execute  and  deliver  to  the  said  plaintitT  a  gooil  and  suflicieut 
deed  of  said  lot  or  tract  of  land,  with  full  and  proper  covenants 
of  warranty,  and  free  and  clear  of  all  incumbrance;  but  on  the 
conti'ary  tiiereof,  the  s<iid  defendant  avers  that  at  the  time  and 
place  last  aforesaid,  the  siiid  lot  or  tract  of  land  was.  and  for 
a  long  space  of  time  before  had  Imm-u.  subject  to  the  incumbrance 
of  a  certain  mortgage  made  and  executed  by  the  said  plaintitY 

and  his  wife,  to  ,  bearing  date  the   

day  of ,  If'.  .,  to  secure  the  payment  to  the 

said  by  the  said  plaintitT,  in  years 

from  the  date  of  siiid  mortgai,'e,  the  sum  of dol- 
lars, with  inten-st  at  the  rate  of   percentum  per 

annum,  which  siiid  mortgage  was  duly  filed  for  record  in  the 

recorder's  ofHce  of  said  county  of on  the 

day  of lit.  .,  aiul  recorded  in  said  otTice  in 

book of  mortgages,  at  page ,  and  on 

the  said day  of ,  10 .  . ,  was 

not  canceled,  released  or  dischargetl  of  record,  but  there  re- 
mained, and  was  a  subsisting  and  valid  lien  upon  said  lot  or 
tract  of  land,  to  wit,  at  the  county  aforesaid.-'-*^  (Conclude  as  in 
Section  892) 

839  Tender;  replication,  non  est  factum 

2^8  That  the  said  writing  obligatory  in  said  plea  mentioned, 
was  not  nor  is  the  deed  of  said  plaintiff. 

29T  Conway   v.    Case,   22    111.    127  298  Commence  and  conclude  as  in 

(1859).  Section    928. 


DEFENSES   AND   PLEAS  IN    BAIC  3H 

840  Tender;  replication,  payment 

208  That  at  the  said  time  wlien,  etc.,  where,  etc.,  tlie  said  de- 
fendant did  not  pay  to  said  phiintill"  tlie  said  sum  of 

doUars,  as  said  defendant  hath  in  his  said  plea 

alleged. 

841  Tender ;  replication,  payment  of  taxes 

2»8  That  the  said  defendant  did  not  pay  all  taxes  on  sjiid  land 
between  the  day  of  the  date  of  said  bond  or  writing  obligatoiy 

and  the  day  of  ,  TJ .  . ,  as  by 

the  said  plea  is  alK'ged. 

842  Tender;  replication,  incumbrance 

2°8  That  said  mortgage  made  and  executed  by  said  plaintiff 

and  his  witV  to at  the  said  time  when,  etc.,  where, 

etc.,  wiis  not  a  .subsisting  and  valid  lien  upon  the  lot  or  tract  of 
land  in  said  plea  mentioned,  as  in  said  plea  is  alleged. 

843  Tender;  replication 

2"8  That  at  the  same  time  when,  etc.,  and  at  the  place  when, 
etc.,  as  in  said  plia  nifnlioncd.  the  said  defendant  did  not  ten- 
der to  the  s;iid  plaint ilT  the  .said  sum  of   (lollai*s, 

as  in  and  by  his  .said  plea  the  siiid  defendant  hath  alleged. 

844  Tender ;  notice  with  general  issue 

(Precede  this  by  plea  of  general  issue) 
To plaintitf: 

You  will  please  take  notice  that  on  the  trial  of  this  cause,  the 
said  defendant  will  give  in  evidence  and  insist,  in  his  defense, 

that  before  the  commencement  of  this  suit,  to  wit,  on  the 

day  of ,  19.  .,  at ,  and  again  on, 

to  wit,  the day  of ,  1 1) . . ,  at 

, ,  the  .said  defendant  was  ready  and 

willing  and  then  and  there  tendered  and  offered  to  pay  to  said 

plaintitf  tiie  sum  of dollars,  lawful  money,  as  to 

the  claim  alleged  in  said  plaintiff's  declaration  in  this  cause; 
to  receive  which  of  said  defendant,  the  said  plaintiff  then  and 
there  wholly  refused  and  always,  from  the  time  of  the  accruing 
of  said  claim  to  the  said  plaintiff,  the  said  defendant  has  been 
ready  and  willing,  and  still  is  ready  and  willing,  to  pay  the  said 
sum  of  money  to  the  said  plaintitf,  and  now  brings  the  same  with 
interest  thereon  into  court,  ready  to  pay  to  the  said  plaintitf  if 
he  will  accept  the  same. 

Dated,  etc. 

298  Commcnco  and  conclude  as  in 
Section   928. 


312  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

845  Tender ;  acceptance  and  waiver 

The  plaintiff  now,  in  open  court,  waives  and  releases  any  other 

damages  claimed  in  the  declaration  than  as  to  the  sum  of 

alU'fjed  by  tlie  defenchmt,  in  Ids plea  to  be  tendered 

and  broufrht  into  court ;  but  as  to  said  sum  of the 

plaintitl"  accepts,  and  asks  judgment  for  said  amount. 

846  Title,  landlord  and  tenant 

In  actions  based  upon  tlie  rehition  of  landlord  and  tenant 
in  undisturbed  possession,  the  landlord's  title  cannot  be  con- 
troverted l)y  the  tenant."'-'" 

847  Title;  vendor  and  vendee,  pleading 

A  substantial  defect  in  a  title  mu.st  be  specially  pleaded  or 
noticed  and  proved  in  an  action  for  the  purchase  price  brought 
by  the  vendor  of  real  property.^*^^ 

848  Title;  plea,  requisites 

A  plea  of  failure  of  title  must  aver  specifically  the  manner 
in  which  the  title  has  failed,  and  why.^"^ 

849  Ultra  vires 

An  agreement  of  a  corporation  wiiich  is  beyond  its  corporate 
powers  is  absolutely  void  and  cannot  l)e  ratified,  nor  can  it 
become  valid  by  acquiescence  of  eitliei*  })arty.'"'- 

850  Unproved  counts,  practice 

It  is  proper  practice  for  the  trial  court,  when  requested  so 
to  do,  to  withdraw  defective  or  unsupported  counts  from  the 
consideration  of  the  jury,  where  a  declaration  consists  of  more 
than  one  count  and  some  of  them  fail  to  state  a  cause  of 
action,  or  they  are  unsupported  by  any  evidence  which  would 
fairly  tend  to  prove  them ;  but  a  refusal  of  the  court  to  grant 
the  request  is  no  reason  for  a  reversal  of  the  judgment  when 
there   are   other  proved   counts  in    the   declaration   which   are 

299  Griffing  Bros.  Co.  v.  Winfield,  3oi  Wisdom  v.  Becker,  52  111.  342, 
53   Fla.   589    (1907).  344   (1869). 

300  Dwight  V.  Cutler,  3  Mich.  566,  302  Converse  v.  Emerson,  Talcott 
577    (1855).  &  Co.,  242  111.  619,  627    (1909). 


DEFENSES  AND  PLEAS  IN  BAR  313 

sufficient  to  sustain  the  verdict.^"^  The  absence  of  evidence 
which  would  fairly  tend  to  prove  a  count  or  counts  and  to 
sustain  a  judgment  thereon,  authorizes  the  giving  of  an  instruc- 
tion to  disregard  the  unproved  count  or  counts;  but  the  court 
has  no  power  to  dismiss  such  counts  from  the  declaration.^^* 

851  Usury,  generally 

To  constitute  usurj%  there  must  be  a  borrowing  and  lending 
of  money  or  the  forbearance  of  a  pre-existing  debt.^*'^  A  surety 
on  a  usurious  note  has  a  right  to  interpose  the  defense  of 
usury.^^*'  By  special  statutory  provision  in  Illinois  the  de- 
fense of  usury  must  be  specially  pleaded.^"'^ 

852  Usury,  burden  of  proof 

The  burden  of  proving  usury  is  upon  the  party  who  urges 
it  as  a  defense.^"® 

853  Usury;  plea,  requisites 

The  defense  of  usury  is  in  the  nature  of  a  penal  action,  re- 
quiring strictness  in  pleading  it.  The  plea  should  show  clearly 
that  the  defense  comes  within  the  statute.^"*^  Facts  wherein 
the  usury  consists  must  be  stated  in  the  plea.^^*'  A  plea  of 
usury  setting  forth  a  forbearance  of  a  pre-existing  indebted- 
ness, should  state  specifically  the  amount  forborne,  the  time  of 
forbearance,  and  how  much  was  paid,  or  agreed  to  be  paid,  by 
way  of  interest  for  the  forbearance,  so  that  the  court  could 
determine,  from  the  face  of  the  plea,  whether  there  is  usury 
in  the  transaction.^^^  In  Illinois  a  plea  of  usury  must  not 
profess  to  answer  the  whole  cause  of  action,  because  the  defense 

303  Klofski  V.  Eailroad  Supply  Co.,  The  Illinois  decisions  on  the  neces- 
235  111.   146,  149   (1908).  sity    of    pleading    usury    apparently 

304  Pittman  v.  Chicago  &  Eastern  are  conflicting  because  some  of  them 
Illinois  E.  Co.,  231  111.  581,  585  were  based  upon  laws  requiring  the 
(1908)  ;  Kennedy  v.  Aetna  Life  Ins.  pleading  of  usury  and  others  were 
Co.,  242  111.  396,' 400  (1909).  decided    under   laws   which   did   not 

305  Hancock  v.  Hodgson,  3  Scam.  require  pleading. 

329    333    (1841).  308  Walker  v.  Lovitt,  250  111.  543, 

3ocSaflford    v.    Vail,    22    HI.    326  550   (1911). 
(1859).  309  Hancock  v.  Hodgson,  3  Scam. 

307  Sec.     7,     c.     74,     Eev.     Stat.  329,  333. 
(Kurd's  Stat.  1911,  p.  1406);  Part-  3io  Durham  v.  Tucker,  40  111.  519, 

low  V.  Williams,  19  111.  132   (1857);  522  (1866). 

Smith     V.     Whitaker,     23     111.     367  3ii  Hancock  v.  Hodgson,  supra. 

(1860). 


314  ANNOTATED   FORMS  OF   PLELVDINQ   AND  PRACTICE 

of  usury  is  given  only  to  the  extent  of  the  usurious  portion  of 
the  indebtedness.^^- 

854  Usury;  notice  with  general  issue  (Mich.) 

313  To 

Attorney  for  said  plaintiff: 

You  will  please  take  notice  that  on  the  trial  of  this  cause,  the 
said  defendant  will  ^i^e  in  evidence  and  insist  in  his  defense 
that  a  greater  rate  of  interest  than  is  allowed  by  law  was  re- 
served in  the  contract  and  promises  allefjed  in  plaintitT's  declara- 
tion and  that  said  contract  and  promises  are  tainted  with  usury 
and  are  unenforceable  as  to  that  part  thereof,  which  represents 
the  usurious  interest,  and  as  to  any  interest  at  the  option  of 
this  defendant,  and  this  defendant  elects  to  so  treat  and  consider 
the  same  because  of  the  usur>'  therein  countenanced,  permitted 
and  practised,  and  will  insist  that  no  interest  be  allowed  said 
plaintiff,  and  that  the  $ or  $ men- 
tioned in  section of  the  contract  set  up  in  plain- 
tiff's declaration  cannot  be  recovered  being  usurious  interest 
under  the  laws  of  the  state  of  ^lichigan. 

Dated,  etc.^i^ 

855  Validity  of  contract,  pleading 

The  validity  of  a  contract  cannot  be  insisted  upon  under  the 
general  issue,  but  must  be  specially  noticed.^i'^ 

856  Voluntary  assignment ;  discontinuance,  replication 

(Commence  as  in  Section  928)     That  he  never  at  any  time 

received  from  said   ,  assignee,  or  from  any  other 

source  on  behalf  of  said  pretended any  portion  of 

the  said  sums  so  due  to  him  as  aforesaid,  and  that  after  the  said 

filing:  with  said ,  assig-nee  of  said  pretended , 

of  the  said  verified  claim  of  said  plaintiff,  to  wit,  on  the 

day  of ,  19  •  • , >  a  ^"^1  order  or 

judgment  was  duly,  legally  and  in  accordance  with  the  statute 

in  such  case,  entered  by  the  county  court  of .  county 

in  the  matter  of  the  voluntary  assignment  of  said  pretended 

,  then  pending  in  said  court,  by  which  said  order 

or  judgment  all  proceedings  in  the  matter  of  said  assignment 
were  discontinued  upon  the  assent  in  writing  of  the  said  pre- 
tended      and  a  majority  of  its  creditors  in  nura- 

312  Moir  V.  Harrington.  22  111.  40  3i4  Rosen  v.  Rosen,  159  Mich.  72 
(1859);   Nichols  v.  Stewart,  21  III.       (1909). 

106  (1859).  31.5  Hermann    &    Co.    v.    People's 

313  Precede  this  by  plea  of  general  Department  Store,  160  Mich.  224 
issue.  (1910);  Circuit  Court  Rule  7e, 


DEFENSES  AND  PLEAS  IN  BAR  315 

ber  and  amount,  and  all  parties  were,  thereby  and  by  force  of 
the  statute  in  such  cases  made  and  provided,  remitted  to  the 
same  rights  and  duties  as  existed  at  the  date  of  the  said  assign- 
ment, except  in  so  far  as  said  estate  of  said  insolvent  had  then 
already  been  administered  upon  and  disposed  of,  as  by  the 
record  and  proceedings  in  said  matter  of  the  voluntary  assign- 
ment of  said  pretended now  remaining  in  the  said 

county  court of county,  more  fully 

appears;  which  said  order  or  judgment  still  remains  in  full  force 
and  effect,  not  reversed,  appealed  from,  vacated  or  modified. 
And  this  the  said  plaintiff  is  ready  to  verify  by  the  said  record 
when,  where  and  in  such  manner  as  the  court  shall  direct,  and 
he  prays  that  said  record  may  be  seen  and  inspected  by  the 
court. 

Attorney  for  plaintiff. 
GENERAL  ISSUE 

857  General  issue  defined 

Any  plea  which  puts  in  issue  the  entire  count  or  record  sued 
upon  is  the  general  issue.^^" 

858  General  issue,  constructive 

A  plaintiff  will  be  considered  to  have  consented  to  try  a 
case  the  same  as  if  a  general  issue  had  been  filed  if  he  waives 
the  right  to  take  default  or  to  rule  the  defendant  to  plead.^i^ 


859  General  issue,  waiver 

The  sufficiency,  in  law,  of  the  declaration  is  admitted  by  plead- 
ing the  general  issue,  or  by  pleading  the  general  issue  after  the 
overruling  of  a  demurrer,  unless  the  declaration  states  a  defec- 
tive cause  of  action.-'*^^  Duplicity  in  a  declaration  is  waived 
by  pleading  the  general  issue.^is 

3ioCompton  v.  People,  86  111.  176,  HI.    146,   150    (1908);    Quiney  Coal 

178  (1877)  Co.  V.  Hood,  77  HI.  68.  70   (1875); 

317  First  National  Bank  v.  Miller,  American  Express  Co.  v.  Pinekney, 
235  111    135    139  (1908).  29    111.   392.   405    (1862);    Fuller  v. 

318  Wenoiia  Coal  Co.  V.  Holmquist,  Jackson  (City),  82  Mich.  480,  482 
15'>  HI  581  591  (1894);  Chicago  (1890);  Grand  Eapids  &  Indiana 
Cit"y  Ry  Co  v.  Jennings.  157  R.  Co.  v.  Southwick,  30  Mich.  444, 
111      274,'     282      (1895);      Chicago,  446  (1874). 

Rock    Island   &    Pacific    Ry.    Co.    v.  sio  Chicago  ^f  VP''«ir«?7'  £« 

People,    217    HI.    164.    172    (1905);       v.  Ingraham,  131  111.  659,  665,  666 
Klofsk'i  V.  Railroad  Supply  Co.,  235       (1890). 


316  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

860  General  issue ;  nature  and  scope,  generally 

The  filing  of  the  general  issue  to  the  entire  ileclarution  trav- 
erses every  material  alle^'atioii  coutaiiieil  in  every  eount ;  it 
puts  the  plaintitT  upon  proof  of  his  cause  of  aetion;  anil  it 
prevents  him  from  taking  default  or  judgment  upon  any  count 
of  his  declaration  until  the  entire  issue  is  tried.''-'^  Any  matter 
which  tends  to  show  that  the  plaint ilV  never  had  a  cause  of 
aetion  may  be  introduced  under  the  general  issue.'-*  As  a 
general  nde,  the  defeiulant  nuiy  deny  or  prove,  under  the  gen- 
eral issue,  whatever  a  plaintitT  is  obliged  to  prove  as  an  essen- 
tial part  of  his  own  case.-'--  If  any  nuitvrial  allegation  re(|uires 
a  decision  upon  a  <|uestion  of  law,  jui  issue  or  (picstion  of  law 
can  thus  be  raisr.l  iii(lin'<'tly  by  the  plea  of  the  general  issue. ^-'^ 

861  Estoppel  in  pais 

Acts  and  tl.'.larations  of  which  the  injurimis  consequences 
might,  and  ought  to  have  been  fon'sccn,  and  upon  which  others 
may  act  to  their  prejudice,  eainiot  be  restricted  by  those  who 
made  them  if  the  persons  to  whom,  or  for  whose  benefit  the 
declarations  are  made  acted  iipon  them  in  good  faitli  and 
thereby  clumged  their  situation  so  that  injury  would  result 
were  a  retraction  permitted.  Neither  the  plaintitT  nor  the 
defendant,  is  therefore,  permitted  to  insist  upon  that  which  is 
inconsistent  with  what  he  has  said  or  ilone,  and  which  affects 
the  rigiits  of  others.''-'-*  An  estoppel  in  i)ais  as  a  defen.se  to  an 
action  at  law   need  not  be  specially  pleaded  or  noticed.^-'* 

862  Fraud 

In  actions  upon  simple  contracts,  evidence  of  fraud  in  their 
procurement  is  admissible  under  the  genei-al  issue,''-"  but  such 
evidence  is  inadmissible  in  actions  ujMin  sealed  instruments."*-"^ 
Under  the  general  issue  and  an   atMdavit  denying  the   execu- 

820  Van  Dusen  v   Pomerov,  24  111.  316    (1864);    Illinois  Fire   Ins.   Co. 

289.  290,  291   (1860).           '  v.  Stanton,  57  111.  3.34.  362  (1870). 

321  Curtiss  V.  Martin,  20  111.  .5.57,  3::.  Dean  v.  Crall,  98  Mich.  591, 
571    (1858);    Wolf   V.    Powers,    241  594   (1894). 

Ill     9,    13     (1909);     Biederman    v.  32fl  Dillon  Beeb 's  Son  v.  Eakle,  43 

O'Con'ner.  117  111.  493,  497  (1886).  W.  Va.  502.  512   (1897). 

322  Edwards  v.  Chandler.  14  Mich.  327  National  Valley  Bank  v.  Hous- 
471,475   (1866).  ton.    66    W.    Ya.    336.    347    (1909); 

323  Wolf  V.  Powers,  241  HI.  13.  Columbia  Accident  Ass  'n  v.  Rockey, 
S24Knoebel  v.  Kircher,  33  111.  308,       93  Va.  678,  684   (1896). 


DEFENSES  AND  PLEAS  IN  BAR  317 

tion  of  the  instrument  sued  upon,  fraud  may  be  sho^\^l  in  ob- 
taining the  signature  to  the  instrument.^-^ 

863  Letters  of  administration 

The  failure  to  obtain  letters  testamentary  or  that  of  an  ad- 
ministrator may  be  shown  under  the  general  issue.^-^ 

864  Misjoinder  and  nonjoinder  of  plaintiffs 

At  common  law  a  defendant  may  show  under  the  general 
issue  in  actions  ex  contractu  that  too  few  or  too  many  persons 
are  joined  as  plaintiffs.^^o  This  rule  holds  good  in  Illinois 
notwithstanding  the  statutory  provision  which  dispenses  with 
proof,  under  the  general  issue,  of  the  joint  rights  as  copart- 
ners, payees,  or  obligees;  as  this  provision  is  restricted  to  a 
phiintilf's  proof  and  not  to  that  of  a  defendant.^^i  In  actions  in 
form  ex  delicto  for  the  recovery  of  damages  as  distinguished 
from  actions  for  the  recovery  of  the  specific  property,  the  non- 
joinder of  plaintiffs  is  available  only  to  lessen  the  plaintiff's  dam- 
ages, for  the  reason  that  the  defendant  is  still  liable  to  a  sec- 
ond action  by  tlie  parties  who  are  not  joined  in  the  action  for 
a  recovery  <;!'  their  portion  of  tlic  los.s.^"'- 

865  Plaintiff's  character  and  capacity 

Plea(lin^'  the  general  issue  admits  the  character  in  which  a 
plaintiff  sues.''^^  The  plaintiff's  capacity  to  sue  as  an  indi- 
vidual cannot  be  questioned  under  the  general  issue.^^i 

866  Statute  of  frauds 

A  verbal  or  oral  acceptance  of  a  written  order  on  a  third  per- 
son and  the  payment  of  a  portion  of  the  amount  called  for  by 
the  order,  do  not  take  the  promise  to  pay  the  balance  out  of  the 
statute  of  frauds.335  On  the  principle  that  the  general  issue 
places  the  plaintiff  upon  proof  of  a  valid  contract,  or  of  a 

328Soper  V    Peck,   51  Mich.   563,  332  Johnson  v.  Richardson,  17  111. 

566   (18S.3).    ■  302,  304    (1855). 

329  McLean    County    Coal    Co.    v.  333  McKinley  v.  Braden,  1  Scam. 

Long,  91  111.  617.  621   (1879).  64,  67   (1832). 

330Snell   V    DeLand,   43   111.   323,  334  Mclntire   v.    Preston,    5    Gilm. 

326  (1867).  48,  58   (1848) 

331  Snell  V    DeLand,  43  111.  325;  335  Chicago  Heights  Lumber  Co.  v. 

Lasher  v.  Cotton,  225  111.  234,  236  Miller,  219  IlL  79,  82  (1905). 
(1907). 


318  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

transaction  which  rendera  the  defendant  liable,  the  defense  of 
the  stiitute  of  frauds  is  open  under  the  general  issue.^^*'  A  rule 
of  court  requiring  notice  of  fraud  to  be  given  with  the  general 
issue  has  no  application  to  pleading  or  noticing  the  defense  of 
the  statute  of  frauds,  which  defense  may  be  interposed  without 
special  pleading  or  any  notice  to  the  general  issue. ^^^ 

867  Pleading  and  demurring 

It  is  not  permissible  to  plead  the  general  issue  to  the  entire 
declaration  and  afterwards  to  demur  to  a  part  or  count 
thereof.^^^ 

868  Plea  of  general  issue  (Michigan) 

And  now  comes  the  defendant  above  named by 

,  bis  attorney,  and  dtMuands  a  trial  of  the  matter 

set  forth  in  the  plaintitf's  declaration. 

Dated,  etc.»^» 


Attorney  for  defendant. 

(West  Virginia) 

It  is  customary,  in  "West  Virginia,  to  plead  orally  the  general 
issue,  such  as  not  guilty,  noii  assumpsit,  and  conditions  per- 
formed, and  to  note  its  filing  alone  upon  the  docket  or  record.^'**' 

NOTICE  UNDER  GENERAL  ISSUE 
869  Notice,  nature  and  effect 

A  distinction  is  recognized  between  a  special  plea  and  a  notice 

given  with  the  general  issue  in  their  objects  and  tests  of  suffi- 
ciency. The  objects  of  a  special  plea  are  to  apprise  the  plaintiff 
of  the  nature  of  the  defense  relied  upon  in  order  to  prevent  his 
surprise  on  the  trial  and  to  form  a  distinct  issue  of  law  or  fact ; 
the  test  of  its  sufficiency  is  whether  the  facts  stated  in  the  plea 

33C  and  337  Third  National  Bank  v.  tice  has  been  properly  sip^ned.     The 

Steel,    129   Mich.   434,   438    (1902);  business  address  of  the  defendant's 

Circuit  Court  Rule  7b,  c.   (Mich.).  attorney  is  required  by  Circuit  Court 

338  Hawks  V.  Lands,  3  Gilm.  227,  Rule  7a,  unless  the  address  has  been 

230   (1846).  previously  given  in  a  notice  of  re- 

839  This  form  is  applicable  to  all  tainer. 

civil    actions.      It    is    not    necessary  3^o  National  Valley  Bank  v.  Hous- 

to  sign  a  plea  where  a  notice  has  ton,  66  W.  Va.  336,  341  (1909). 
been  added  to  the  plea  and  the  no- 


DEFENSES  AND  PLEAS  IN  BAR  319 

are  sufficient  to  support  a  judgment  without  resorting  to  intend- 
ments except  those  which  necessarily  arise  from  the  facts  admit- 
ted by  a  general  demurrer.  AVhereas  the  object  and  test  of  the 
sufficiency  of  a  notice  under  the  general  issue  are  not  always  the 
same  and  depend  upon  the  statute  in  each  particular  case.^^^ 
Thus,  under  i\Iichigan  practice  and  since  the  revision  of  1846, 
the  sole  object  of  a  notice  required  to  be  filed  ^^dth  the  general 
issue  is  to  apprise  the  plaintiff  of  the  nature  of  the  defense  that 
he  might  be  prepared  to  meet  it,  and  to  avoid  surprise  on  the 
trial,  but  no  issue  can  be  made  under  it  other  than  that  raised  by 
the  general  issue. 

A  notice  is  not  a  pleading;  it  is  not  to  be  tested  by  the  rules 
that  are  applicable  to  pleas;  and  no  issue  of  fact  or  law  can  be 
founded  upon  it.^^^  ^  notice  which  is  filed  with  the  general 
issue,  not  being  a  pleading,  it  cannot  be  traversed  or  answered 
as  such. 343  The  test  of  the  sufficiency  of  such  a  notice  in  Mich- 
igan is  not  whether  the  facts  that  are  alleged  therein  are  suf- 
ficient upon  general  demurrer,  as  it  is  in  Illinois,  but  whether 
the  plaintiff  could  with  reasonable  certainty  anticipate  the  mat- 
ter of  the  defense  which  is  sought  to  be  interposed  by  the  notice ; 
and  its  effectiveness  is  determined  upon  the  trial  by  the  admis- 
sion or  the  rejection  of  evidence  under  it. 3^*  The  accuracy  of 
a  special  plea  is  not  required  of  a  notice  of  special  defense.^*^ 
This  test  is  applicable  to  all  forms  of  actions.^^s  ^  notice  which 
may  be  given  under  the  general  issue  cannot  be  made  to  take 
the  place  of  special  pleas  of  no7i  est  factum  nor  that  of  nul  tiel 
corporation.347 

870  Notice,  scope,  Michigan 

By  the  revision  of  1846  special  pleading  is  absolutely  forbid- 
den, and  instead  a  notice  should  be  added  to  the  general  issue 
wherever  a  special  plea  would  have  been  necessary  under  the 
former  practice.^-^s    All  affirmative  defenses  in  avoidance  of  the 

341  Rosenbury  v.  Angell,  6  Mich.  345  Farmers'  Mutual  Fire  Ins.  Co. 
608.  514  (1859).  v.  Crampton,  43  Mich.  421  (1880). 

342  M  'Hardv  v.  Wadsworth,  8  346  Cresinger  v.  Eeed,  25  Mich. 
Mich.   .S49,  .361    (1860).  450,  454  (1872). 

343  Burgwin  v.  Babcock,  11  111.  28,  347  Bailev  v.  Vallev  National 
30    (1849).  Bank.  127*111.  332   (1889);   Sec.  46. 

344  Rosenbury  v.  Angell,   6   Mich.  Practice  act  1907  (111.). 

508,  514    (1859);   Briesenmeister  v.  34  8  Cresinger    v.    Eeed,    25    Mich. 

Knights  of  Pythias,   81   Mich.   525,      450,  454  (1872). 
533   (1890). 


320  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

cause  of  action,  such  as  payment,  release,  satisfaction  and  dis- 
charge, non-delivery,  statute  of  limitations,  fraud,  partial  or  en- 
tire failure  of  consideration,  all  matters  which  are  in  no  way 
connected  with  the  plaintiff's  atlfirmative  case,  and  all  defenses 
which  are  specially  pleadable  at  common  law,  must  be  set  forth 
in  a  notice  added  to  the  general  issue  under  Michigan  practice.^^" 

871  Notice,  admission 

All  facts  that  are  set  forth  in  a  notice  of  special  defense  filed 
with  the  general  issue  are  admitted  by  the  defendant  and  require 
no  proof  by  the  plaintiff.^^*^ 

872  Notice,  general  form  (Michigan) 

To , 

Attorney  of  record,  or the  plaintiff  in  the  above 

cause : 

You  will  please  take  notice  that  on  the  trial  of  this  cause,  the 
defendant  under  plea  of  general  issue  will  introduce  affirmative 
evidence  to  show  that  (Set  forth  special  matter  of  defense). 

By 

Defendant's  attorney. 

BILL  OF  PARTICULAES 

873  Nature  and  scope 

The  object  of  a  bill  of  particulars  is  to  inform  the  defendant 
of  the  claim  he  is  called  upon  to  defend,  and  its  effect  is  to  limit 
and  restrain  the  plaintiff  on  the  trial  to  the  proof  of  the  par- 
ticular cause  or  causes  of  action  therein  mentioned.^^^  The  proof 
must  correspond  with  the  allegations  and  the  bill  of  par- 
ticulars.3^2  ^  party  will  not  be  permitted  to  recover  a  greater 
amount  than  that  claimed  in  his  bill  of  particulars.^^^ 

874  Application,  demand  or  motion,  nature 

A  motion  for  a  bill  of  particulars  is  in  the  nature  of  a  dilatory 
motion  and  must  be  made  at  the  first  opportunity.    It  should  be 

349  Circuit  Court  Eule  7b,  c. — ;  ssi  McKinnie  v.  Lane,  230  111.  544, 
Bryant   v.    Kenyon,   123   Mich.    151,      548    (1907). 

154    (1900);    Rosenbury   v.    Angell,  352  Lovington   v.   Adkins,   232   111. 

6  Mich.  513.  510,  516   (1908). 

350  Buckeye  Brewing  Co.  v.  Eymer,  353  Morton  v.  McClure,  22  HI.  257 
157  Mich.  518.  521  (1909)  ;  Circuit  (1859) ;  Sec.  32,  Practice  act  1907. 
Court    Eule    7e;    Conistock    v.    Tag- 

gart,  156  Mich.  47,  53    (1909). 


DEFENSES  AND  PLEAS  IN  BAR  321 

made  before  pleading  in  bar  to  the  action.  A  motion  for  a  rule 
to  make  a  count  more  specific,  however,  may  be  made  at  any- 
time before  trial.^^^ 

875  Requisites 

A  bill  of  particulars  of  a  sale  need  not  state  the  purchaser's 
name  nor  that  the  name  of  the  purchaser  is  unknown.^^^ 

876  Amendment 

A  bill  of  particulars  is  amendable.^^^ 

GEOUNDS  OP  DEFENSE 

877  Defenses,  limitation,  waiver 

The  limitation  to  the  grounds  of  defense  filed  is  removed  and 
waived  by  a  plaintiff  who  offers  evidence  Vv'hich  bears  upon  an- 
other and  distinct  ground  of  defense  from  that  which  has  been 
filed.2^7 

PKACTICE 

878  Pleading,  time 

In  all  suits  commenced  by  declaration  a  defendant,  in  Michi- 
gan, may  plead  wdthin  fifteen  days  after  personal  service  upon 
him  of  a  copy  of  the  declaration  and  the  notice  of  rule  to  plead.^^^ 
The  defendant  has  full  fifteen  days  within  which  to  plead  any 
plea  he  deems  advisable,  notwithstanding  the  existence  of  a  gen- 
eral rule  of  court  giving  a  shorter  period  of  time  to  plead  certain 
pleas.^^^ 

879  Extension  of  time,  motion 

And  now  come     the  defendant    by    attorney     , 

,  and  move    the  court  for  an  order  herein  granting 

an  extension  of  time  to  the  said  defendant     of    

days  in  which  to  plead  or  demur  to  the  plaintiff     declaration. 

And  for  the  reasons  for  this  the  defendant  motion,  by 
said  attorney     ,  it  says : 

354McCarthey  v.  Mooney,  41  111.  358(9985),   C.   L.   1897,   amended 

300   (1866).  1905  acts,  p.  103;  Wyandotte  Eolling 

■555  People    V.    Zito,    237    111.    434,  Mills  Co.  v.  Eobinson,  34  Mich.  428, 

440   (1909).  431   (1876). 

35G  McKinnie  v.  Lane,  230  111.  544,  359  Hake   v.    Kent   Circuit   Judge, 

548   (1907).  99  Mich.  216  (1894). 

357  Metropolitan   Life  Ins.   Co.  v. 
Hayslett,   111  Va.   107    (1910). 


322  ANNOTATED    FORMS   OF   PLEADING    AND   PRACTICE 

1.  That  it  is  a  foreign  corporation,  resident  at 

in  the portion  of  the  state  of 

2.  That  service  herein  was  had  on  a  person  not  intimately- 
connected  with  the  defendant  corporation. 

3.  Tliat  by  reason  of  tlie   forei^^oiiij;,  defendant     attorney 
was  not  able  to  be  notilied  of  the  pi-ndency  of  this  suit  until 

the instant  and  has  yt't  been  unable  to  conuiuini- 

cate  with  the  defendant     or  to  learn  any  of  the  facts  necessary 
to  enable  him  to  make  a  proper  defense  for  the  defendant 

herein.  .     .    r. 

4.  That  so  far  as  defendant  said  attorney  is  informed, 
the  defendant  ha  a  meritorious  defence  to  the  vvhok'  of  the 
phiinliff's  demand;  but  that  owing  to  the  complicated  nature 
of  the  same,  and  the  delays  attendant  upon  eomnuinication  with 
defendant     ,  at  a  distant  and  inaccessible  part  of  the  country, 

said  attorney     is  not  sufficiently  informed  of  the 

same  to  make  a  proper  defense  herein  and  cannot  safely  pro- 
ceed to  make  such  defense  without  further  information. 

5.  That,  by  reason  of  the  premises,   days  is  a 

reasonable  time  to  be  allowed  defendant      within  which  to  form 
a  proper  defense,  as  herein  moved. 

Defendant's  attorney. 

880  Several  pleas 

A  defendant  may  plead  specially  and  separately  to  each  cause 
of  action  which  has  been  properly  joined  in  one  count.^""  A  party 
may  plead  as  many  inconsistent  pleas  or  replications  as  he 
chooses,  but  each  pleading  must  be  complete  and  consistent  with 
itself  and  it  must  answer  the  pleading  for  which  it  is  intended.^*''! 
Each  plea  must  be  complete  in  itself  and  form  a  distinct  issue.^cz 
In  Illinois,  where  a  party  may  plead  as  many  pleas  as  he  deems 
necessary  for  his  defense,  each  plea  stands  by  itself  and  forms  a 
distinct  issue,  and  does  not  operate  as  an  admission  of  another.^'"'^ 
The  statutory  permission  to  plead  simultaneously  as  many  de- 
fenses as  a  defendant  deems  necessary  does  not  extend  to  pleas 
which  are  inconsistent  with  one  another;  as  a  plea  to  the  juris- 
diction of  the  person  and  a  plea  to  the  merits.^e* 

360  Brady  v.  Spurck,  27  111.  478,  3R2  priest  v.  Dodsworth,  235  111. 
482  (1861);  Godfrey  v.  Buckmaster,       613,  616  (1908). 

1  Scam.  447,  450   (1838).  3G3  Farman  v.  Childs,  66  111.  544, 

361  Priest    V.    Dodsworth,    235    111.       547   (1873). 

613      619     (1908);     "West     Chicago  364  Putuam    Lumber   Co.   v.    Ellia- 

Street    E     Co.    v.    Morrison,    Adams       Young  Co.,  50  Fla.  251,  261  (1905). 
&    Allen     Co.,     160     111.     288,    295 
(1896) ;    Corbley  v.  Wilson,   71  111. 
209,  213  (1874). 


DEFENSES   AND   PLEAS   IN   BAB  323 

881  Additional  pleas 

After  a  defendant  has  availed  himself  of  the  right  to  plead,  he 
cannot  plead  specially  without  leave  of  court.  Whenever  the 
defendant  has  exhausted  his  right  to  plead  by  filing  the  general 
issue,  and  he  desires  to  interpose  defenses  which  are  not  avail- 
able thereunder,  a  court  is  bound  to  grant  to  him  leave  to  plead 
these  defenses  if  he  makes  reasonable  application  therefor. 36  5 
An  application  for  leave  should  be  made  at  the  earliest  day  to 
avoid  the  plaintiff's  surprise  and  not  to  delay  the  business  of 
the  eourt.366  Leave  to  file  additional  pleas  should  be  granted  to 
a  defendant  when  it  appears  that  he  is  not  guilty  of  culpable 
negligence  in  not  making  application  at  an  earlier  date  and  when 
the  additional  pleas  are  indispensable  to  the  making  of  a  legal 
defense.367  Upon  the  allowance  and  the  making  of  a  material 
amendment  to  the  declaration,  a  defendant  is  entitled  to  plead 
to  it  as  amended ;  and  if  he  applies  for  leave  to  so  plead,  the  leave 
should  be  granted  to  him.^cs 

882  Abandonment  of  pleas 

A  party  will  be  restricted  to  a  single  issue  if  he  abandons  at 
the  trial  all  other  issues  that  are  raised  by  the  pleas  except  the 
one  relied  upon.^*^^ 

883  Striking  pleas 

A  plea  which  is  improperly  filed  may  be  stricken  from  the 
files.370  The  mere  failure  to  plead  within  the  time  provided  by 
special  or  general  rule,  is  no  ground  for  striking  out  a  plea  which 
is  filed  before  the  defendant  is  put  in  default.^'^i  A  defendant 
has  no  right  to  present  the  same  defense  by  different  pleas.  All 
pleas  but  one  which,  in  all  respects,  present  the  same  defense, 
may  be  stricken  from  the  files  as  encumbering  the  record. ^"^  A 
plea  should  not  be  stricken  from  the  files  merely  because  it  is 

365  Bemis  v.  Homer,  145  HI.  567,  369  Franks  v.  Matson,  211  111.  338, 
571    (1893);    Millikin   v.    Jones,    77       345   (1904). 

111.  372,  375   (1875);  People  v.  Mc-  3-o  Honore     v.      Home     National 

Hatton,  2  Gilm.  731,  734   (1845).  Bank,   80   111.   489,  492    (1875). 

366  Fisher  v.  Greene,  95  111.  94,  97  371  Castle  v.   Judson,   17   111.  381, 
(1880).  384    (1856);    Corbin   v.    Turrill,    20 

367  Misch  V.  McAlpine,  78  111.  507,  111.   517,  518    (1858). 

508    (1875);    Bemis  v.   Homer,   145  3-2  Parks   v.   Holmes,   22   111.   522 

111.  567,  571   (1893).  (1859). 

368Griswold  v.  Shaw,  79  111.  449, 
450    (1875). 


324  ANNOTATED   FORMS  OF   PLEADING    AND   I'KACTICE 

defective.3^3  On  a  motion  to  strike  pleas  from  the  files  the  issue 
of  whether  or  not  a  defendant  has  a  valid  defense,  cannot  be 
raised  or  tried.^'* 

884  Repleader 

After  an  issue  of  fact  has  been  actually  joined  upon  a  plea 
presenting  a  wholly  immaterial  issue,  before  verdict,  the  issue 
may  be  stricken  from  the  files,  and  the  court  may  award  a  re- 
I)lt'ader  or  render  judgment  by  ml  elicit;  after  a  verdict,  a  judg- 
ment 7U)n  obstante  veredicto  (notwithstanding  the  verdict)  may 
be  given  in  a  very  clear  ease.^'^'^  The  judgment  may  be  arrested 
and  a  repleader  awarded  if  the  finding  is  not  decisive  upon  the 
merits.  If  tlie  finding  is  decisive,  the  verdict  cures  the  defect. 
If  no  issue  of  fact  is  joined  npou  an  iimuaterial  plea,  the  issue 
tliereby  presented  can  be  eliminated  only  by  demurrer.^"**  An 
immaterial  issue  will  not  be  set  aside  upon  the  court's  own 
motion.3^^ 

COMMENCEMENT  AND  CONCLUSION 

885  Commencement  (common  law),  additional  plea 

And  now  come       the  said  defendant     ,  defendant       in  the 

above  entitled  cause,  by ,      h        attorney      ,  and  by 

leave  of  court  first  had  and  obtained  file  the  following  addi- 
tional pleas  to  the  said  declaration  of  the  said  plaintiff  ,  as 
follows : 

886  Commencement,  admitting  part  of  claim 

And  for  a  further  plea  in  this  behalf  the  defendant  says  that 

the  several  supposed  causes  of  action  in  the ,  and 

counts  of  the  plaintiff's  declaration,  and  each  of 

them,  are  one  and  the  same  cause  of  action,  to  wit,  the  supposed 

cause  of  action  set  forth  in  said count,  and  as  to 

that  cause  of  action,  the  defendant  says  the  plaintiff  ought  not 
to  have  his  aforesaid  action  against  him,  the  defendant,  for  the 

sum  in  excess,  to  wit,  the  sum  of dollars,  parcel 

of  the  several  suras  of  money  in  said  counts  mentioned,  because 
he  says: 

373  Bemis  v.  Homer,  145  111.  572.        supra;   Eothschild   v.    Bruscke,    131 

374  Bemis  V.  Homer,  swpra.  HI.     265,    271     (1890);     Woods    v. 

375  Consolidated  Coal  Co.  v.  Peers,      Hynes,  1  Scam.  103   (1833). 

166  111.  361,  365  (1897).  377  Burlingarae  v.  Turner,  1  Scam. 

376  Consolidated  Coal  Co.  v.  Peers,      588,  589  (1839). 


DEFENSES   AND  PLEAS   IN   BAR  325 

887  Commencement,  entire  declaration 

And  for  a  further  plea  in  this  behalf,  the  said  defendant  says 
that  the  said  plaintiff  ought  not  to  have  or  maintain  his  afore- 
said action  against  him,  the  said  defendant,  because  he  says  that 
the  several  supposed  causes  of  action  in  said  declaration  men- 
tioned are  one  and  the  same,  to  wit,  the  supposed  cause  of  action 
in  the  (first)  count  of  said  declaration  mentioned  and  not  other 
or  different  causes  of  action,  and  as  to  that  cause  of  action,  the 
defendant  says: 

888  Commencement,  oyer 

And  for  a plea  in  this  behalf  the  said 

comes  and  defends,  etc,  and  craves  oyer  of  the  said  supposed 
writings  obligatory  in  the  declaration  mentioned,  and  they  are 
read  to  him,  etc.,  and  he  also  craves  oyer  of  the  said  conditions 
of  the  said  supposed  writings  obligatory,  and  they  are  read  in 
these  words,  etc.,  and  says,  actio  non,  because  he  says: 

889  Commencement,  several  pleas 

A  first  plea  is  commenced  thus: 

iVnd  the  defendant, by ,  his  attor- 
ney, comes  and  defends  the  wrong  and  iujury,  when,  etc.,  and 
says: 

Additional  pleas  are  begun  as  follows: 

And  for  a  further  plea  in  this  behalf  the  said  defendant  comes 
and  defends  the  wrong  and  injury,  when,  etc.,  and  says ;  or 

And  for  a  further  plea  in  this  behalf  the  said  defendant  says 
actio  non  because  he  says;  or 

And  the  said  defendant  for  a  further  plea  in  this  behalf  says 
that  the  said  plaintiff  ought  not  to  have  or  maintain  his  afore- 
said action  thereof  against  it  because  it  says : 

890  Conclusion,  nature  and  effect 

The  character  of  a  plea,  whether  it  is  in  bar  or  in  abatement  is 
determined  by  its  conclusion.^^s  A  plea  which  begins  in  bar  and 
which  ends  in  abatement  is,  therefore,  in  abatement.  So  a  plea 
which  commences  in  abatement  and  which  concludes  in  bar,  is 
in  bar.  Likewise,  a  plea  which  begins  and  ends  in  abatement 
is  in  abatement,  although  its  subject  matter  is  in  bar;  and  a  plea 
which  commences  and  concludes  in  bar  is  in  bar  notwithstand- 

378  Pitts  Sons'  Mfg.  Co.  V.  Com- 
mercial National  Bank,  121  111.  582, 
587  (1887). 


326  ANNOTATED   FORMS   OP    PLEADING    AND   PRACTICE 

iiig  that  its  subject  matter  is  in  abatement.^^"     The  mistake  to 
properly  conelude  a  plea  is  fatal  to  it.^*^ 

891  Conclusion  to  the  country 

And  ul'  this  the  said  dt-lendant  puts  himself  upon  the  coun- 
try, etc. 

892  Conclusion  with  verification 

And  tills  till'  said  defendant  is  ready  to  verify.  Wherefore 
he  prays  jud^Miiciit  if  the  said  plaintitT  oui,dit  to  have  or  main- 
tain  his  aforesaid   action,  t'te. 

893  Conclusion  with  verification  by  record 

And  this  the  defendant  is  ready  to  verify  by  the  reeord.  when, 
\'.  lu'ri'  and  in  such  manner  as  the  court  shall  direct,  and  he  prays 
that  tile  said  I'ccord  he  seen  and  insjx'cted  by  the  court. 

894  Conclusion  with  verification  in  set-off 

And  this  tiie  said  defendant,    ,  rea<ly  to  verify, 

wherefore        he        pray        judgment    for    the    balance   of   said 

to  wit,  the  sum  of  $ ,  and  also 

whether  the  said  plaintitf      ought  further  to  have  and  maintain 

h      aforesaid  action. 

895  District  of  Columbia  (statutory  commencement  and  con- 

clusion) 

The  commencement  of  a  plea  is : 

1.  For  a  plea  to  the  plaintiff's  declaration  the  defendant 
says: 

There  is  no  conclusion  to  the  country  or  verification  of  a  plea. 

896  Florida 

Now  conies  the  defendant,  by  his  attorney,  and  for  a  (in  case 
of  an  amended  plea  add,  amended  plea)  plea  in  this  behalf  says: 

1.  That  (set  forth  the  special  matter  of  defense,  and  continue 
with  all  other  defense  in  the  same  way). 

h 

Now  comes  the  defendant  in  the  above  styled  cause,  and  for 
pleas  to  the  plaintiff's  declaration  filed  herein,  says: 

1.     (State  matter  of  defense) 

In  Florida  no  conclusion  is  used.  The  plea  is  merely  signed 
by  the  defendant's  attorney. 

379  Pitts  Sons'  Mfjj.   Co.  V.  Com-  aso  pitts  Sons'  Mfjr.  Co.  v.  Com- 

mercial National  Bank,  supra.  mercial  National  Bank,  supra. 


DKPENSES   AND   PLEAS   IN    BAR  327 

897  Maryland 

,  the  defendant  in  the  above  entitled  cause  by 

,  his  attorney,  for  plea  to  each  and  every  count 

of  the  plaintiff's  declaration  says: 


The  defendant  by ,  its  attorneys  for  a  first  plea 

to  the  declaration  in  this  cause,  says  (State  special  matter). 
And  for  a  second  plea  says: 

898  Virgfinia 

The  first  plea  commences  with  *'The  defendant  says  that." 
Second  and  su])sequent  pleas  may  omit  the  statement  that  they 
are  pleaded  by  leave  of  court,  or  according  to  the  form  of  the 
statute.-'^^^ 

VERIFICATION 

899  District  of  Columbia 

District  of  Columbia,  ss. : 

I,   ,  being  first  duly  sworn,  on  oath  depose  and 

say    that    1    am    the for named   as 

dcft'iidant  in  the  alcove  entitled  cause;  tliat  I  have  read  over  the 

foregoing  pleas  numbered  from    to    

inchisive,  to' which  this  affidavit  is  attached;  and  that  the  matters 
and  facts  therein  set  forth  are  true  to  the  best  of  my  knowledge 
and  belief;  and  this  I  am  ready  to  verify. 


Subscribed,  etc. 

Attorney  for  defendant. 

900  Florida 

Before  me  personally  appeared ,  who  being  first 

duly  sworn,  says  that  he  is  the  duly  authorized  agent  for  the 
defendant  in  this  cause,  and  that  the  above  and  foregoing  plea 
is  true. 

Subscribed,  etc. 

h 

Before  me  on  this  day  personally  came and  who 

being  by  me  first  duly  sworn,  says  that  he  has  read  the  fore- 

381  Sees.  32G9,  3270,  Va.  Ann. 
Code  1904. 


328  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

going  pleas  numbered ,  and  tliat  the  same  are  true 

and  correct. 


Defendant. 
Subscribed,  etc. 

AFFIDAVIT  OF  MERITS 

901  Object 

The  purpose  of  an  afHidavit  of  merits  is  to  inform  and  satisfy 
the  court  of  the  existence  of  a  bona  fide  defense  according  to  the 
facts  that  are  admissible  under  the  plea,  and  to  thereby  avoid 
frivolous  pleading.-''^- 

902  Nature  and  effect 

An  aftidavit  which  denies  the  execution  of  a  promissory  note 
that,  under  the  pleadings,  may  or  may  not  constitute  tiie  basis 
of  a  recovery  or  a  defense,  is  not  an  affidavit  of  merits  within  the 
meaning  of  Illinois  statute.^*^  An  affidvait  of  merits,  if  filed 
with  a  plea  of  the  general  issue,  is  a  part  of  the  plea  and  a  part 
of  the  reeord.^^^-*  If,  however,  the  plea  is  stricken  from  the  files 
on  motion,  a  bill  of  exceptions  is  necessary  to  make  the  entire 
proceeding  on  the  motion  a  part  of  the  record. ^'^^  An  affidavit 
of  merits  in  the  nature  of  a  plea  of  set  off  is  regarded  with  the 
same  strictness  in  matters  of  substance  as  a  pleading.^^s 

903  Necessity  of  affidavit 

Sw^earing  to  the  pleadings  is  required  by  statute  as  a  condition 
precedent  to  the  right  to  file  them.^s'  A  defendant  has  no  right 
to  plead  without  an  affidavit  of  merits  where  the  plaintiff  has  a 
right  to  and  does  file  an  affidavit  of  his  claim. ^^^  The  making  of 
a  motion  at  the  same  time  that  a  plea  to  the  merits  is  filed,  does 
not  dispense  with  the  necessity  of  filing  an  affidavit  of  merits 
with  the  plea. 3^^     The  affidavit  of  merits  filed  with  the  general 

382  Castle  V.  Judson,  17  111.  381,  386  McCord  v.  Crooker,  83  111.  556, 
385     (1856);    Chicago,    Danville    &      561   (1876). 

Vincennes   R.    Co.   v.   Bank,   82    111.  387  Honors  v.  Home  National  Bank, 

493,  496   (1876).  80    111.   492;    Sec.    55,    Practice   act 

383  Chicago,  Danville  &  Vincennes       1907    (111.). 

R.  Co.  V.  Bank,  82  111.  496,  497.  388  Honore     v.      Home     National 

384  Whiting  V.  Fuller,  22  111.  33  Bank,  supra;  Sec.  55,  Practice  act 
(18.59);    Williams   v.    Reynolds,    86       1907   (HI.). 

111.   263,   265    (1877).  389  Kassing  v.  Griffith,  86  111.  265, 

385  Gaynor  v.  Hibernia  Savings  267  (1876);  Sec.  55,  Practice  act 
Bank,  166  111.  577,  579  (1897).  1907   (111.). 


DEFENSES  AND  PLEAS  IN  BAR  329 

issue  in  an  action  against  defendants  who  are  sued  jointly  may 
be  sworn  to  by  one  of  the  defendants.^^''  A  foreign  corporation 
which  is  doing  business  in  Illinois  is  within  the  statute  requiring 
an  affidavit  of  merits.^^^  This  is  based  upon  the  construction  of 
the  word  "resident"  in  the  phrase  "if  the  defendant  is  a  resident 
of  the  county  in  which  suit  is  brought,"  contained  in  section  36 
of  a  former  act.  This  phrase  has  been  eliminated  from  section  55 
of  the  present  Practice  act.  But  it  is  not  unlikely  that  the  pres- 
ent section  will  be  construed  to  include  foreign  corporations, 
under  the  rule  that  they  are  amenable  to  the  same  rules  and  regu- 
lations as  domestic  corporations. 

904  Additional  affidavit 

An  affidavit  of  merits  which  presents  a  defense  only  to  a  por- 
tion of  the  plaintiff's  demand,  ceases  to  be  operative  upon  the 
plaintiff's  limitation  of  his  demand  to  the  amount  admitted,  and 
the  defendant  may  be  required  to  make  an  additional  affidavit.^'*^ 

905  Requisites 

It  is  not  necessary  that  an  affidavit  of  merits  should  use  the 
exact  words  of  the  statute,  provided  Avords  of  equal  import  are 
employed  and  the  statute  is  substantially  complied  with.^^^ 

906  Forms  (Illinois) 

,  being  first  duly  sworn  says  that  he  is  one  of 

the  defendants  in  the  above  entitled  cause  and  that  he  verily 
believes  that  he  has  a  good  defense  to  this  suit  upon  the  merits 
to  the  whole  of  plaintiff's  claim. 


Subscribed,  etc. 

DEMAND  FOR  JURY 

907  District  of  Columbia 

To  the  honorable,  the  judge  of  said  court : 

The  defendant,    ,  elects  to  have  this  ease  tried 

before  a  jur>',  and  prays  the  court  for  leave  so  to  do. 

Attorneys  for  defendant. 

3»o  Whitinf  v.   Fuller,   22   111.    33  392  Haggard  v.  Smith,  71  HI.  226, 

(1859);   Smfth  v.  Batement,  79  111.       228   (1874). 

.531     532    (1875);    See.   55,  Practice  393  Castle   v.   Judson,    17   111.   381, 

act  1907   (111.)  385    (1856);    Sec.   55,   Practice   act 

391  Chicago,  Danville  &  Vincennes       1907  (111.). 
R.    Co.    V.    Bank,    82    111.    493,    496 
(1876);  Sec.  36,  Practice  act  1872, 
as  amended. 


330  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

To  the  plaintiff: 

Take  notice  that  the  defendant,  the  elects  to 

have  this  ease  tried  before  a  jury. 


Attorneys  for  defendant. 
AMENDMENT 

908  Requisites 

An  amendment  to  a  plea  must  resemble  the  plea  which  it  pur- 
ports to  amend  in  the  character  of  the  defense  proposed.^'"* 

304  People   V.    McHatton,   2   Gilm- 
731,  734   (1845). 


CHAPTER    XVIII 
SIMILITER 

IN  GENERAL  FORMS 

§§  §^ 

909  Similiter  defined  912  District  of  Columbia 

910  Waiver  913  Florida 

911  Practice  914  Illinois 

915  Maryland 

IN  GENERAL 

909  Similiter  defined 

The  word  similiter  is  an  abbreviation  of  et  proedichis  similiter 
and  means  "and  he  does  the  like."  It  is  no  part  of  the 
pleadings.^ 

910  Waiver 

A  formal  joinder  of  issue  is  waived  in  Illinois  by  proceeding  to 
trial  upon  the  merits  without  objection.-  Proceeding  to  trial 
without  objection  upon  a  part  of  the  issues  joined  is  a  waiver  of 
the  issues  that  are  not  joined ;  especially  when  a  party  has  had 
full  benefit  of  the  unjoined  issues.^  In  Virginia  the  mere  omis- 
sion to  reply  or  to  join  issue  is  waived  by  proceeding  to  trial  with- 
out a  formal  joinder  in  a  manner  and  to  the  extent  as  though  a 
formal  pleading  had  been  filed.^ 

911  Practice 

A  court  may  allow  the  filing  of  a  joinder  in  issue  at  the  time 
the  case  is  called  for  trial. ^  Either  party,  the  plaintiff  or  the  de- 
fendant, may  add  the  similiter  to  a  plea  which  concludes  to  the 
country.^ 

1  Anderson 's  Law  Die.  *  Deatrick  v.  State  Life  Ins.  Co., 

2  Armstrong  v.   Mock,   17  111.   166  107  A^a.  602,  606   (1907). 
(1855);  Voltz  v.  Harris,  40  111.  155,  5  Peterson  v.  Pusey,  237  111.  204, 
158  (1866)  ;  Hazen  &  Limdv  v.  Pier-  206  (1908). 

son  &  Co.,  83  111.  241,  242   (1876).  e  Stumps    v.    Kelley,    22    111.    140, 

3  Strohm  v.  Hayes,  70  111.  41,  43  142  (1859)  ;  Gillespie  v.  Smith,  29 
(1873).  111.  473,  476    (1863). 

331 


332  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

FORMS 

912  District  of  Columbia  (joinder  in  sue) 

■^  The  plaintiff  joins  issue  on  defendant. 's  plea. 

Attorney  for  plaintiflf. 

Notice  of  trial 

Take  notice  that  the  issue  joined  in  this  cause  will  be  tried  at 
the  next  term  of  this  court. 

Attorney  for  plaintiff. 

To 

Attorney  for  defendant. 

Note  of  issue 

Attorney  for  plaintiflf. 

Attorney  for  defendant. 

Last  pleading  was 

(date) 

The  clerk  will  calender  this  cause  to  the  next  term  of  court". 

913  Florida 

The  plaintiff  joins  issue  upon  the  plea  of  the  defendant  and 

puts  himself  upon  the  country. ^ 

914  Illinois 

And  the  plaintiff. .,  as  to  the  plea  of  said  defendant.  .,  a  cor- 
poration,  etc.,  by  .  .h.  .  firstly  above  pleaded  and  whereof  .  .he. . 
ha. .  put sel.  . . .  upon  the  country,  does  the  like. 

Attorney  for  plaintiflf. . 

915  Maryland 

The  plaintiff by ,  his  attorneys,  for 

a  replication  to  the  pleas  of  the  defendant  says : 
That  he  joins  issue  on  the  same. 

Attorneys  for  plaintiflf. 

The  plaintiffs,  by ,  their  attorney,  join  issue  on 

defendants and pleas. 

7  See  Section  211.  Note  60. 

8  Green    v.    Sansom,    41    Fla.    94 
(1899) ;  Sec.  1055,  Kev.  Stat. 


CHAPTER  XIX 


REPLICATION 


IN  GENERAL 


916  Replication    defined 

917  Nature  and  scope 

918  General     replication — de     in- 

juria, nature 

919  Special  replication 

PRACTICE 

920  Several  replications 

921  Several     replications;     leave, 

motion 

922  Filing 


923  Superfluous  matter,  motion  to 

strike 

REQUISITES 

924  Title 

925  Traverse 

926  Sufficiency 
COMMENCEMENT  AND 

CONCLUSION 

927  Florida 

928  Illinois 

929  Maryland 

930  Mississippi 


IN  GENERAL 

916  Replication  defined 

Replications  are  general  or  special.  At  law,  a  general  replica- 
tion merely  states  that  the  plaintiff  joins  issue  upon  the  plea.  A 
special  replication  is  one  which  alleges  new  matter.^ 

917  Nature  and  scope 

In  Illinois,  upon  the  filing  of  a  plea,  the  plaintiff  may  reply 
by  taking  issue  or  by  setting  up  new  matter  in  avoidance.^  The 
necessity  for  replying  specially  to  a  plea  is  not  removed  by  sec- 
tion 1055  of  the  Revised  Statutes  of  Florida.  A  general  replica- 
tion, under  the  statute,  is  sufficient  when  the  plea  is  the  general 
issue  or  not  guilty,  or  the  matter  pleaded  amounts  to  such  plea.^ 
All  material  facts  set  out  in  the  plea  and  not  specifically  traversed 
by  a  replication  are  admitted  and  do  not  require  proof  to  sup- 
port them.-*  An  unanswered  plea  is  not  admitted  during  the 
pendency  of  a  demurrer  to  another  plea,  until  the  court  has  been 


1  Green  v.  Sansom,  41  Fla.  94,  100 

2  Clemson  v.  State  Bank,  1  Scam. 
45  (1832). 


3  Green  v.  Sansom,  41  Fla.  101. 

4Hepler  v.  People,  226  111.  275, 
278  (1907);  Home  Ins.  Co.  v.  Fa- 
vorite, 46  lU.  263,  267  (1867). 


333 


334  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

moved  to  take  some  specific  action  upon  the  plea  by  a  rule  to 
plead  or  by  giving  a  formal  judgment  for  want  of  a  replication.*^ 

918  General  replication — de  injuria;  nature,  pleading 

A  replication  de  injuria  is  a  general  traverse  of  the  whole  plea, 
permitting  the  plaintiff  to  adduce  any  proof  that  tends  to  dis- 
prove any  of  the  facts  alleged  in  the  plea.«  A  general  replication 
to  a  special  plea  is  permissible  and  puts  in  issue  the  material 
matters  thereof.^ 

919  Special  replication,  pleading 

At  common  law  special  replications  are  permissible  and  neces- 
sary whenever  a  plea  sets  up  a  special  defense  by  matter  in  con- 
fession and  avoidance.^  This  rule  prevails  in  Illinois  under  the 
statute." 

PEACTICE 

920  Several  replications 

The  making  and  the  filing  of  more  than  one  replication  to  the 
same  plea  is  permissible  under  Florida  practice. i"  Replications 
which  are,  in  legal  effect,  the  same  as  others  that  are  presented 
in  the  cause,  may  be  stricken  from  the  files.^i 

921  Several  replications ;  leave,  motion 

12  And  now  comes  the  plaintiff  by ,  its  attorney, 

and  asks  leave  of  court  to  reply  specially  and  double  to  the  pleas 

of  the  defendants  by  them  pleaded and 

in  the  above  styled  action,  to  wit,  to  the  plea  of 

and  to  the  plea  of  license. 

922  Filing 

A  court  may  permit  the  filing  of  a  replication  at  the  time  a 
cause  is  called  for  trial.^^ 

5  People    V.    Weber,    92    111.    288,  w  Hart  Fire  Ins.  Co.  v.  Eedding, 

292   (1879)  47  Fla.  228,  247  (1904);  Sec.  1059, 

sAyres     v.     Kelley,     11     111.     17  Kev.  Stat.  1892    (Fla.). 

(1849)  11  People    v.    Central    Union    Tel. 

7  National  Vallev  Bank  v.  Hons-  Co.,  192  111.  307,  309  (1901). 
ton     66   W.   Va.    344,   345    (1909).  12  See  Section  211,  Note  60. 

8  Gunton  v.  Hughes,  181  111.  132  i3  Peterson  v.  Pusey,  237  lU.  204, 
(1899).  206   (1908). 

»S€C.  51,  Practice  act  1907  (111.). 


REPLICATION  335 

923  Superfluous  matter,  motion  to  strike 

And  now  comes  the  defendant, ,  by , 

its  attorney,  and  shows  to  the  court  here  that  in  the  plaintiff's 
replication  the  following  portions  are  superfluous:  that  is  to 
say,  the  words  "and  she  was  also  prevented  by  the  fraud,  crime 
and  concealment  of  the  defendant  from  obtaining  any  knowledge 
of  the  said  alleged  by-law, ' '  and  moves  that  the  same  be  stricken 
out. 

And  the  said  defendant  further  shows  to  the  court  that  the 

following  words  are  superfluous,  to  wit : , 

and  moves  the  court  here  to  strike  out  said  words. 

And  the  defendant  also  shows  that  the  following  words  are 

superfluous,  to  wit : ^  and  moves 

the  court  here  to  strike  out  said  words. 

Defendant's  attorney. 
REQUISITES 

924  Title 

It  is  not  necessary  to  entitle  a  replication  of  any  term,  it  being 
presumed  that  all  pleadings,  except  pleas  in  abatement,  were 
filed  at  the  same  term.^^ 

925  Traverse 

A  replication  should  not  deny  matters  of  inducement  in  the 
plea.i^ 

926  Sufficiency 

A  bad  replication  is  considered  sufficient  if  interposed  to  a 
bad  plea.^^ 

COMMENCEMENT  AND  CONCLUSION 

927  Florida 

Now  comes  the  plaintiff  in  the  above  entitled  cause  by  his 

attorney,   ,  and  for  replication  to  the  defendant's 

plea,  says :  1.  That  (Set  forth  matter  of  replica- 
tion, numerically  under  separate  paragraphs  to  all  pleas). 

All  of  which  the  plaintiff  is  ready  to  verify. 


Attorney  for  plaintiff. 


1*  Miller    v.    Blow,    68    111.    304,  is  People    v.    Central    Union    Tel. 

309  (1873).  Co.,   siipra. 

15  People    V.    Central    Union    Tel. 
Co.,  232  111.   260,  276    (1908). 


336  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

928  Illinois 

And  the  plaintiffs  as  to  the  plea  of  the  defendant  by  it  above 
pleaded,  say  that  they,  the  plaintiffs,  by  reason  of  anything  in 
that  plea  alleged,  ought  not  to  be  barred  from  having  their  afore- 
said action,  because  they  say : 

Portion  of  indebtedness  admitlul  by  pica 

And  the  plaintiff,  as  to  the  plea  of  the  defendant  by  it  (sec- 
ondly or  thirdly,  etc.)  above  pleaded,  says  that  he,  the  plaintiff', 
by  reason  of  anything  in  that  plea  alleged,  ought  not  to  be  barred 
from  having  his  aforesaid  action,  except  as  to  the  sum  of  to  wit: 
$ ,  because  he  says : 

Conclusion 

And  this  said  plaintiff  prays  may  be  inquired  of  by  the  coun- 
try, etc. 

b 

And  this  the  said  plaintiff  is  ready  to  verify ;  wherefore  the 
said  plaintiff  prays  judgment  and  his  damages  by  him  sustained, 
by  reason  of  the  committing  of  said  trespasses  to  be  adjudged 
to  him,  etc. 

929  Maryland 


and  ,  plaintiffs,  by , 

their  attorney  for  replication  to  defendant's  plea,  say: 
(Conclude  Avith  attorney's  signature). 

930  Mississippi 

Comes  the  plaintiff  by ,  his  attorney,  and  by  way 

of  replication  to plea  filed  by  the  defendant  in  this 

cause  says  that  he  ought  to  be  allowed  to  recover  in  this  cause, 
because  (Allege  particular  matter). 

And  this  the  plaintiff  is  ready  to  verify. 


CHAPTER   XX 
REJOINDER   AND    SUBSEQUENT    PLEADINGS 


EEJOINDER 


936  Forms 


931  Practice 

932  Requisites  REBUTTER 

933  Commencement    and    conclu-      937  Illinois 

sion  938  Mississippi 

934  Forms  SURREBUTTER 

SURREJOINDER  939  Form 

935  Commencement     and     conclu- 

sion 

EEJOINDER 

931  Practice 

Special  application  must  be  made  by  the  defendant  for  leave 
to  file  several  rejoinders. ^  The  court's  entertaining  of  a  de- 
murrer to  a  rejoinder  which  was  improperly  filed,  is  equivalent 
to  the  granting  of  leave  to  file  the  rejoinder.^ 

932  Requisites 

A  rejoinder  must  be  responsive  to  the  allegations  of  the  repli- 
cation and  must  fully  answer  them.^  The  rejoinder  admits  the 
sufficiency  of  the  replication  ansvrered.* 

933  Commencement  and  conclusion  (Illinois) 

^And  the  said  defendant,  as  to  the  said  plaintiff's  replication 

to  the  said  defendant's plea  says  actio  non,  because 

he  says  ^  (Conclude  to  the  country  or  with  a  verification  as  in 
case  of  pleas). 

And  the  defendant,  as  to  the  said  replication  of  the  plaintiffs 
to  the plea  of  the  defendant,  says,  that  the  plaintiffs 

1  Sec.  51,  Practice  act  1907  (111.).  4Heimberffer    v.    Elliot    Frog    & 

2  Ryan  v.  Yanlandingham,  25  El.  Switch  Co.,  245  111.  448.  452  (1910). 
128,  131   (1860).  5  See  Section  211,  Note  60. 

3  Ryan  v.   Yanlandingham,  supra.  e  3  Chitty  's  PI.,  p.  1232. 

337 


338  ANNOTATED    FORMS   OF    PLEADING    AND    PKACTICE 

ought  not,  by  reason  of  anything  l)y  thcin  in  that  replication 
alleged,  to  have  or  maintain  their  aforesaid  action  against  it,  the 
defendant,  because  it  says : 

(Mississippi) 

Comes  the  defendant  by  attorney  and  for  re- 
joinder to  phiintilf's  replication  to  the  plea  of    , 

says:  (Set  forth  special  matter  and  conclude  with  verificatiou, 
or  to  the  country). 

h 

And  for  a  rejoinder  herein  to  plaintiff's  replication,  defendant 
says  that  the  plaintift'  ought  not  to  be  allowed  to  recover  in  this 
action,  because  he  says:     (!Set  up  special  matter). 

934  Forms  (Illinois) 

And  the  said  defendant,  as  to  the  said  plaintiff's  replication  to 
the  said  defendant's  (second;  plea,  wliereof  the  said  plaintiff 
hath  put  himself  upon  the  country,  doth  the  like. 

(Maryland) 

Now  comes  the  defendant,  by  its  attorney, ,  and 

says : 

1,  That  it  joins  issue  on  the  replication  of  the  plaintiff  to  the 
defendant's  plea  marked  1,  and  that  it  joins  issue  on  the  plain- 
tiff's replication  to  a  further  plea  marked  2  of  the  defendant's. 


Attorney  for  defendant. 


SU-REEJOIXDER 

935  Commencement  and  conclusion  (Illinois) 

And  the  plaintiff  as  to  the  rejoinder  of  the  defendants  to  the 
replication  of  the  plaintiff  saith  that  it  by  reason  of  anything 
in  that  rejoinder  above  alleged  ought  not  to  be  barred  from  hav- 
ing or  maintaining  its  aforesaid  action  thereof  against  the  de- 
fendants, because  he  says:     (Conclude  as  in  replication). 

(Mississippi) 

And  for  a  surrejoinder  of  the  plaintiff  to  defendant's  rejoinder 
to  plaintiff's  replication  herein,  the  plaintiff  says  that  he  ought 
to  be  allowed  to  recover  in  this  action  because  (Set  forth  special 
matter  and  conclude  as  in  replication). 


REJOINDER  AND   SUBSEQUENT   PLEADINS  339 

936  Forms  (Illinois) 

And  the  said  plaintiff  as  to  the and rejoinders 

of  the  said  defendant ,  and  which  the  said  defend- 
ant hath  prayed  may  be  inquired  of  by  the  country,  doth  the  like. 


Attorney  for  plaintiff. 


And  the  plaintiff  as  to  the  rejoinder  of  the  defendant's  to  the 
replication  of  the  plaintiff,  whereof  they  put  themselves  on  the 
country,  doth  the  like. 

(Maryland) 

And  the  plaintiff,  the  said    ,  by   , 

her  attorneys,  for  a  surrejoinder  to  the  defendant's  rejoinder  to 

the  plaintiff's  replications  to  the  defendant's 

plea  says  that  the  said  plaintiff  joins  issue  thereon. 


Attorney  for  plaintiff. 
Service  admitted. 

EEBUTTER 

937  Illinois 

And  the  said  defendant,  as  to  the  said  surrejoinder  of  the  said 
plaintiff  (secondly)  above  pleaded  (or  to  the  said  rejoinder  of 
llic  said  defendant  to  the  said  replication  to  the  said  (second) 
plea  of  the  said  defendant),  saith,  that  the  said  plaintiff  ought 
not,  by  reason  of  anything  by  him  in  that  surrejoinder  alleged, 
to  have  or  maintain  his  aforesaid  action  against  him  in  respect 
of  the  said  supposed  (promise  or  trespass)  in  the  introductory 
part  of  the  said  (second)  plea  mentioned,  because  he  saith,  that 
the  said  defendant  did  not  (state  special  matter)  in  manner  and 
form  as  the  said  plaintiff  hath  above  in  his  said  surrejoinder  in 
that  behalf  alleged.  And  of  this  the  said  defendant  puts  himself 
upon  the  country,  etc. 

938  Mississippi 

Now  comes  the  defendant  herein  and  by  way  of  rebutter  to  the 
surrejoinder  of  the  defendant  herein  filed,  says  that  the  plaintiff 
ought  not  to  be  allowed  to  recover  in  this  action  by  reason  of 
anything  alleged  in  said  surrejoinder,  and  for  cause  says:  (Set 
up  the  particular  matter  and  conclude  as  in  plea). 

SUEREBUTTEE 

939  Form 

And  the  said  plaintiff,  as  to  the  said  defendant's  rebutter, 
whereof  he  hath  put  himself  upon  the  country,  doth  the  like.' 

7  3  Chitty's  PL,  p.  1236. 


PART  III 
COMMON  LAW  ACTIONS 


CHAPTER   XXI 


ASSUMPSIT 


DECLARATION  REQUISITES 

§§ 

940  Generally 

941  Consideration ;      defect      not 

cured 

942  Promise,  use  of  word 

943  Promise;  several  defendants, 

doubt  as  to  liability 

944  Conditions,  precedent  and  sub- 

sequent 

945  Conditions;  waiver  or  estop- 

pel, proof 

946  Breach 

CAUSES    OF    ACTION    AND 
SPECIAL  DECLARATIONS 

947  Accceptance  of  order,  Narr. 

948  Account,  credits 

949  Account,  open ;  Narr. 

950  Account  stated,  promise 

951  Account  stated,  Narr. 

952  Account   stated   and    seizure, 

Narr. 

953  Account    stated    and    seizure, 

affidavit  of  amount  due 

954  Account    stated    and    seizure, 

affidavit  describing  property 

955  Account    stated    and    seizure, 

writ  and  return 

956  Accounting,  action 

957  Alimony,  Narr. 

958  Assignment  of  claim  for  use 

and  occupation,  Narr. 

959  Assignment  of  partnership  ac- 

count or  note,  Narr. 

960  Automobile  insurance,  Narr. 

961  Bailment,  action 

962  Bank  deposit,  Narr. 

963  Bill  of  exchange;  acceptance, 

liability 


§§ 
964 

965 

966 

967 

968 

969 

970 

971 

972 

973 

974 

975 

976 

977 

978 

979 

980 
981 
982 

983 


Bill  of  exchange ;  declaration, 

requisites 
Bill  of  exchange;  drawee  v. 

drawer,  Narr. 
Bill  of  exchange;  Indorsee  v. 

acceptor,  Narr. 
Building  contract;  architect's 

certificate 
Building  contract ;  apartment, 

Narr. 

contract ; 


Building    contract ;    building, 

Narr. 
Building      contract ;    church, 
Narr. 

Building  contract,  factory, 
Narr. 

Checks ;  drawee  v.  collecting 
bank  (forged  maker  and 
payee),  Narr. 

Checks ;  indorsee  v.  drawee, 
Narr. 

Checks;  indorsee  v.  maker, 
Narr. 

Commission ;  insurance  ad- 
juster, Narr. 

Commission ;  real  estate  bro- 
ker, loan,  Narr. 

Commission ;  real  estate  bro- 
ker, sale,  authority 

Commission ;  real  estate  bro- 
ker, sale,  Narr. 

Commission ;  stock  broker  de- 
fined 

Contracts,  law  governing 

Contracts,   generally 

Contracts;  performance,  ten- 
der 

Contracts ;  third  person's 
benefit,  action 


343 


344 


.iNNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 


§§ 

984  Contracts;       third      person's 

benefit,       declaration,       re- 
quisites 

985  I)e   faito  cori)oratii)n,   Xarr. 

986  Delinquent  t^ix,  drainage 

987  Draft,  for^'ed  endorsement 

988  Draft,    indorsee    v.    acceittor, 

Narr. 

989  Drainage  benefits,  liability 

900  Drainage    bfuefits;     declara- 

tion,  rtHiuisiti'S 

901  I^niploynieiit ;     civil     service. 

new  eliargcs 

902  Euiploynient ;         constructive 

service,  election  of  ri'niedics 

993  Employment ;  cutter  and  litter. 
Narr. 

901  Employment;  general  occui«- 
tion,  Narr. 

995  Emi)loyment,  housekeeper, 
Narr. 

99G  Employment;  municipal  em- 
ployee, extra  work 

997  Employment ;    public    ollicer, 

action 

998  Employment;    police    officer, 

Narr. 
990  Employment;    superintendent 
gas  plant,  Narr. 

1000  Employment;  theatrical  man- 

ager. NaiT. 

1001  Fees  of  officers,  constables 

FIKE  INSUKANCE 

1002  Proof  of  loss 
lOOH  Arbitration 

1004  Parties 

1005  Bridge  destroyed,  etc.,  Nan-. 

1006  Chattels  on  farm,  Narr. 

1007  Dwellings,  Narr. 

1008  Furniture,  Narr. 

1009  Furniture  and  fixtures,  Narr. 

1010  Saw-mill  and  plant,  Narr. 

1011  Stock  in  trade  and  furniture, 

Narr. 

1012  Stock  of  goods   or  merchan- 

dise, Narr. 


§§ 

1013  Forfeiture  of  contract,  wrong- 

ful, Narr. 

1014  flaming,  action 

1015  (Jrain  transfer  contract,  Narr. 

1016  (luaraiity   of  account,   Narr. 

1017  (Juaranty  of  contract,  Narr. 
lOlS  (Juaranty  of  notes,  Narr. 
1010  (Juaranty  of  shares  of  stock. 

Narr. 

1020  Heirs  and  devisees;  declara- 

tion, re<iuisites 

1021  Indemnity  bond  as  salesman, 

Narr. 

1022  Indemnity     bond     to    sheriff, 

Narr. 
102.^  Insurance  contract,  ani])iguity 

1024  Insurance,  form  of  action 
1(»25  Insurance,  parties 

1026  Insurance;    declaration,    re<i- 

iiisites,  proof 

1027  Instalments 

1025  Interest,  foreign  laws,  Narr. 
1020  Judgment;    merger    of   judg- 
ment debtor,  Narr. 

1030  Lease,  Narr. 

LIFE   INSURANCE 

1031  Warranties    and    representa- 

tions 

1032  Aci-ident.  Narr. 

1033  Benefit,  agency 

1034  Benefit ;  warranties,  waiver 

1035  Benefit;  liability,  law  and  fact 
1030  Benefit;   liability,  commence- 
ment, interest 

1037  Benefit,  beneficiary 

1038  Benefit,  Narr. 

10;]0  Employers'  liability,  Narr. 

1040  Endowment,  Narr. 

1041  Life  and  accident,  Narr. 

1042  Ordinary ;  premium,  payment 

1043  Ordinary;  delivery  of  policy, 

liability 

1044  Ordinary,  general,  Narr. 

1045  Ordinary;         non-contestable 

policy,  Narr. 

1046  Ordinary;  payment  of  premi- 

um extended,  Narr. 


ASSUMPSIT 


345 


1047  Sick  benefit,  Xarr. 

1048  Suicide,  liability 


1019 

1050 

1051 

1052 

1053 

1054 
1055 
105G 

1057 

1058 

1059 
1060 
lOGl 
1002 
1003 

10G4 

10G5 
1066 

1067 
1008 
1009 

1070 

1071 

1072 

1073 

1074 


Manufactured  articles  for 
dealer,  acceptance  refused, 
Narr. 

Manufactured  building  ma- 
terial, acceptance  refused, 
Narr. 

Manufacturing  goods  i)er  sam- 
ple, refusal,  Narr. 

Manufacturing  plant,  refrig- 
erating S3'stem,  Narr. 

Mechanic's ,  lieu  ;  subcontrac- 
tor, action 

Mechanic's  lien,  notice 

Mechanic's  lieu,  Narr. 

Money  had  and  received,  ac- 
tion 

Money  had  and  received ;  in- 
surance money  received  by 
factor,  Narr. 

Money  had  and  received ;  pur- 
chase price  under  rescinded 
contract,   Narr, 

Money  stolen,  Narr. 

Paving  under  viaduct,  action 

Performance  prevented,  Narr. 

Personal  injuries,  action 

Personal  injuries;  sidewalk 
injury.  Narr. 

Personal  injuries ;  street  car 
collision,  Narr. 

Pi-eferance  by  bankrupt,  Narr. 

Professional  services  rendered 
in  another  state,  action 

Prolats,  Narr. 

Promise  to  marry,  Narr. 

Promissory  notes,  considera- 
tion 

Promissory  notes,  negotiabil- 
ity 

Promissory  notes ;  parties, 
plaintiffs 

Promissory  notes  ;  parties,  de- 
fendants 

Promissory  notes ;  declara- 
tion requisites 

Promissory  notes ;  indoi^see  v. 
indorser,  Narr. 


1075  Promissory  notes;  indorsee  v, 

maker,  Narr. 

1076  Promissory    notes ;    payee    v. 

maker,  Narr. 

1077  Purchase  money ;  sale  of  laud. 

action,  proof 

1078  Purchase  money  ;  sale  of  laud^ 

Narr. 

1079  Reimbursement;   accommoda- 

tion maker,  Narr. 

1080  Reimbursement ;  surety,  Narr. 

1081  Rout;   assignee  of  lease,  ac- 

tion 

1082  Rescission  of  contract,  action 

1083  Rescission   of   contract;   per- 

formance, proof 

1084  Rescission    of    contract;    re- 

sale, measure  of  damages 

1085  Rescission    of    contract;   dec- 

laration, requisites 

1086  Royalties,  Narr. 

1087  Sale;  acceptance  of  goods,  li- 

ability 

1088  Sale ;  partner's  interest,  Narr. 

1089  Sale ;  purchase  price,  Narr. 

1090  Sale ;  refusal  to  accept  cattle, 

Narr. 

1091  Sale;  refusal  to  deliver  goods, 

Narr. 

1092  Sale;   refusal  to  deliver  leaf 

lard,   Narr. 

1093  School   district,  discontinued, 

action 

1094  Shipment ;  delay,  Narr. 

1095  Shipment;    non-delivery,    ac- 

tion 
lOOG  Shipment ;  non-delivery,  Narr. 

1097  Special  assessment,  action 

1098  Subscription  to  shares  of  cap- 

ital stock  ordered  paid  by  de- 
cree, Narr. 

1099  Taxes,  Narr. 

1109  Taxes  paid  under  protest,  ac- 
tion 

1101  Taxes    paid     under    protest, 

Narr. 

1102  Taxes  paid  under  void  sale, 

action 

1103  Telegraph   service,  Narr. 


346 


ANNOTATED   FOKMS  OP   PLEADING    AND    PRACTICE 


§9 

1104  Tenants  in  common,  action 

1105  Transportation;     failure     to 

provide,  Narr. 

1106  Trespass  on  land,  action 

1107  Trespass  on  laud,  declaration 

requisites 

1108  Use  and  occupation,  generally 

1109  Use  and  occupation,  life  and 

sub-tenant,  death  of  life  ten- 
ant, proportioumout  t)f  rent, 
action 

1110  Use  and  occupation,  Narr. 

1111  Wages,  demand 

1112  Water,     failure     to     supply, 

Narr. 
COMMON    COUNTS 

1113  Generally;  common  and  spe- 

cial counts 

1114  Award 

1115  Building   cHjntract 
lllG  Fraud 

1117  Gaming 

1118  Insurance  policy 

1119  Money  had  and  received 

1120  Money  iKud  out  for  defendant 

1121  Money  paid  under  protest 

1122  rayment  in  articles 

1123  rromissory  note 

1124  Special  assessment 

FORMS 

1125  District  of  Columbia 

1126  Florida 

1127  Illinois ;  goods  sold  and  deliv- 

ered, generally 

1128  Illinois ;  goods  sold  and  deliv- 

ered, quantum  valebant 

1129  Illinois ;  work,  labor  and  ma- 

terials 

1130  Illinois  ;  money  counts 

1131  Illinois;  account  stated 

1132  Maryland 

1133  Michigan 

1134  Virginia 

AFFIDAVIT  OF  CLAIM 

1135  District  of  Columbia 

1136  Illinois 

1137  Maryland 


§§ 

1138  Michigan 

1139  West  Virginia 

SPECIAL   DEFENSES   AND 
PLEAS 

1140  Acceptance     of     bill     of     ex- 

change; denial,  pleading 

1141  Accord  and  satisfaction;  plea 

and  replication 

1142  Agister's  lien;  plea,  requisites 

1143  Bona  flde  defense,  failure  to 

make;  plea  and  replication 

1144  Commission,  real  estate  bro- 

ker ;  bad  faith 

1145  Commission,   real  estate  bro- 

ker;   license,   want  of,    plea 
and  replication 
1140  Contract;  mutuality,  test 

1147  Contract,  termination 

1148  Conversion    by    sheriff,    plea 

and  replication 

1149  Deliveiy  of  goods  by  sheriff, 

without    consent ;    plea    and 
replication 

FIRE   INSURANCE 

1150  Additional    insurance,    substi- 

tuted i)olicy  not 

1151  Arbitration    agreed    to    after 

loss,  pending;  plea  and  rep- 
lication 

1152  Arbitration  under  policy  pend- 

ing ;  plea  and  replication 

1153  Cancelation  of  policy;  plea 

1154  Causing  fire,  pleading 

1155  Causing  fire,  plea 

1156  Forfeiture,  waiver 

1157  Incumbrance,    plea    and    rep- 

lication 

1158  Iron  safe  clause,  pleading 

1159  Limitation,  waiver,  proof 

1160  Overvaluation,  plea 

1161  Proof  of  loss,  plea  and  rep- 

lication 

1162  Refusal,  reasons 

1163  Suspension  of  policy,  plea  and 

replication 

1164  Unconditional  ownership,  plea 

and  replication 


ASSUMPSIT 


347 


§1 

1165  Vacant  and  unoccupied,  plea 

and  replication 

1166  Warranties,  pleading 


1167  Indemnity   bond   obtained   by 

false     representation ;     plea 
and  replication 

1168  Indemnity   bond   obtained  by 

fraud;  plea  and  replication 
1109  Indemnity       bond,       sheriff's 
failure    to    follow    instruc- 
tions; plea  and  replication 

1170  Joint  liability ;  denial,  plea 

1171  Joint  liability  or  partnership ; 

denial,  plea 


1172 
1173 
1174 
1175 

1176 

1177 

1178 
1179 
1180 

1181 

1182 

1183 

1184 
1185 
1186 


UFE   INSURANCE 

Beneficiary,  -warranty 

Deductions 

Execution  of  assured 

False  representations,  gener- 
ally 

False  representations,  plea 
and  replication 

Forfeiture,  waiver 

Good  standing 

Incontestability 

Limitation,  plea  and  replica- 
tion 

Medical  attention ;  plea,  rep- 
lication and  rejoinder 

Murder  of  insured,  jilea  and 
replication 

Occupation  different,  plea  and 
replication 

Suicide 

Suicide,  plea  and  replication 

Ultra  vires,  plea 


1187  Loss   of   goods,   express   com- 

pany ;  validity  of  statute 

1188  Non-performance,  plea 

PROMISSORY   NOTES 

1189  Accommodation  maker,  plea 

1190  Assignment,  practice 

1191  Consideration,   want   or   fail- 

ure, generally 

1192  Consideration,    failure;    plea, 

requisites 


1193  Consideration,     partial     fail- 

ure ;  plea,   requisites 

1194  Consideration,    total    failure; 

plea,  requisites 

1195  Diligence,  failure  to  use ;  de- 

murrer     and     affidavit     of 
merits 

1196  Notice  of  defense 

1197  Ownership,  proof 

1198  Surrender  to  maker 


1199 

Recoupment 

1200 

Redemption,  failure;  plea,  re- 

quisites 

1201 

Res  judicata,  replication 

1202 

Set-off,  advance  money 

1203 

Set-off,  general  plea 

1204 

Set-off,  special  plea 

1205 

Special  assessment 

1200 

Statute  of  frauds,  plea 

1207 

Statute  of  limitations ;   plea, 

requisites 

1208 

Statute  of  limitations;   plea, 

replication,  and  rejoinder 

1209  Subscription  to  shares  of  cap- 

ital  stock,  fraud  and  circum- 

vention ;  plea  and  replication 

1210 

Tender  of  admitted  part,  plea 

and  replication 

1211 

Tender     under     compromise, 

plea 

1212 

Trust  and  monopoly,  plea  and 

replication 

GENERAL  ISSUE 

1213 

Nature  and  scope,  generally 

1214  Delivery 

1215 

Fraud 

1216  Nonjoinder   of  proper  plaln- 

tiffs 

1217 

Partnership 

1218  Payment 

1219 

Performance 

1220  Practice 

FOEMS 

1221  District  of  Columbia 

1222 

Florida 

1223 

Illinois 

1224  Maryland 

348 


ANNOTATED   FORMS  OF   PLE/VDING   AND  PRACTICE 


§§ 

1225  Mississippi 

1226  Virginia 

1227  West  Virginia 

NOTICE  WITH  GENERAL 

ISSUE  AND  GROUNDS 

OF  DEFENSE 

1228  Check,  plaintiCf  not   innocent 

holder,  notice 

1229  Grounds  of  defense 

INSUBANCE 

1230  Generally 

1231  Cancelation    and    other    de- 

fenses, notice 

1232  Cause  of  fire,  notice 

1233  Increased  hazard,  etc.,  notice 

1234  General  defenses   (fire  insur- 

ance) notice 

1235  Other  insurance,  notice 


1236  Set  off,  notice 

1237  Use  and  occupation 

AFFIDAVIT  OF  DEFENSE  OR 
MERITS 

1238  Illinois,  necessity 

1239  Illinois,  allidavit 

1240  Maryland 

1241  Michigan,  necessity 


§§ 

1242  Mississippi 

1243  Virginia 

1244  West  Virginia 

BILL   OF   PARTICULARS 

1245  District  of  Columbia 

1246  Illinois 

1247  Maryland,  demand 

1248  Maryland,  cross-motion 
124;>  Michigan,  demand 

1250  Michigan,   notice   and  partic- 

ulars 

1251  Mississippi,  application 

1252  Mississippi,    particulars    and 

affidavit 

1253  Mississippi,  counter-affidavit 

VERDICT 

1254  Florida 

1255  Illinois,   requisites 

1256  Michigan,  variance 

1257  Mississippi 

1258  Virginia 

1259  West  Virginia 

JUDGMENT 

1260  Generally  ;  amount,  interest 

1261  Motion  for  judgment 

1262  Judgment 


DECLARATION  REQUISITES 

940  Generally 

A  declaration  in  assumpsit  must  express  a  consideration,  a 
promise  based  thereon,^  and  the  failure  to  perform.     The  dec- 
laration has  usually   six   parts   or  elements:   the   inducement 
the  consideration,  the  promise,  the  conditions,  the  breach,  and 
the  damages.2 

941  Consideration,  defect  not  cured 

In  actions  which  are  not  based  upon  contracts  which  im- 
port a  consideration,  as  deeds,  bills  of  exchange  and  promis- 
sory notes,  the  declaration  must  set  out  the  particular  con- 
sideration of  the  undertaking  or  promise;  for,  a  valuable  con- 

iRead  V.  Walker,  52  111.  333,  334  2Chitty's  PL,  p.  290. 

(1869). 


ASSUMPSIT  349 

sideration  is  of  the  very  essence  of  the  contract.  The  omis- 
sion to  state  the  consideration  of  a  contract  in  a  declaration, 
when  that  is  necessary,  is  fatal  to  the  maintenance  of  the  action 
and  is  not  cured  by  verdict.  ^ 

942  Promise,  use  of  v^rord 

In  assumpsit,  the  declaration  should  use  the  word  "promise" 
and  not  ' '  agree. "  *  It  is  not  necessary,  however,  to  actually 
use  the  word  "promise"  where  there  is  enough  alleged  in  the 
declaration  which  shows  that  a  promise  took  place. ^  The  omis- 
sion from  the  common  assumpsit  counts,  except  in  one  of  them, 
of  a  promise  to  pay,  to  which  the  general  issue  is  pleaded,  is 
cured  after  verdict.*^ 

943  Promise;  several  defendants,  doubt  as  to  liability 

A  plaintiff  who  is  not  positive  whether  he  can  sustain  an 
action  against  either  of  two  defendants,  should  allege  in  his 
declaration  a  several  promise  against  each  of  the  defendants  in 
the  alternative,  or  he  should  join  two  counts  in  the  declaration, 
each  count  alleging  a  contract  by  one  of  the  defendants.''' 

944  Conditions,  precedent  and  subsequent 

The  averment  of  conditions  precedent  is  essential  in  a  dec- 
laration in  which  the  right  of  the  recovery  depends  upon  their 
performance.^  If  a  party  relies  upon  an  excuse  for  not  per- 
forming he  must  state  his  excuse,  but  he  must  not  aver  per- 
formance.^ At  common  law  strict  proof  of  performance  is 
necessary  under  an  allegation  of  performance  of  a  contract. 
This  rule  has  been  relaxed  in  actions  upon  building  contracts, 
where  proof  of  a  substantial  compliance  with  a  contract  is  suf- 


3  Minor  v.  Michie.  Walker,  24,  29  Salt     Assn.,     140     Mich.    441,    444 

(Miss.    1818);     1,    Chitty's    PI.,    p.  (1905). 

293.  8  Phoenix  Ins.  Co.  v.  Stocks,  149 

<Guinnip    v.    Cater,    58    HI.    296,  111.  319,  325  (1893)  ;  Tillis  v.  Liver- 

297  (1871).  pool  &  London  &  Globe  Ins.  Co.,  46 

5  Union    Stopper   Co.    v.    McGara,  Fla.    268,    278     (1903);    Expanded 

66  W.  Va.  403,  409   (1909).  Metal  Fireproofin?  Co.  v.  Boyce,  233 

sDemesmey  v.  Gravelin,  56  111.  93  111.  284,  287  (1908). 

(1870).  9  Hart   v.    Carsley   Mfg.   Co.,  221 

7 Boot  &  McBride  Co.  v.  Walton  111.  444,  446   (1906). 


350  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

ficient.^0  The  plaintiff  is  not  bound  to  set  up  the  performance 
or  the  happening  of  conditions  subsequent.  ^^ 

945  Conditions;  waiver  or  estoppel,  proof 

A  count  based  upon  an  express  contract  need  not  allege 
waiver  of  some  of  the  provisions  of  the  contract,  as  waiver  or 
estoppel  may  be  proved  witliout  pleading  it.^- 

946  Breach 

The  breach  which  is  assigned  must  be  co-extensive  with  the 
material  part  of  the  undertaking  or  promise  that  has  been 
averred.  1^ 

CAUSES  OF  ACTION  AND  SPECIAL  DECLARATIONS 

947  Acceptance  of  order,  Narr.  (111.) 

1*  For  that  whereas,  one  W  F,  on,  to  wit, ,  19 .... , 

in  the  county  aforesaid,  made  his  certain  order,  and  delivered 
the  same  to  the  phiintiff,  and  thereby  then  and  there  requested 

the  defendants   to  pay    dollars    ($ )    unto 

the  plaintiff  or  its  order,  which  said  order  the  defendants  on, 

to  wit,   ,  19.  . .  .,  accepted,  and  which  said  order 

was  in  words  and  figures  following:     (Insert  order.) 

An  which  acceptance  was  thus:  namely,  plaintiff  delivered 
to  said  C  D  by  delivery  to  said  D  ]\I  the  said  order,  and  the 
said  D  ]\I  then  and  there,  on  his  behalf  and  on  behalf  of  said 
C  D,  orally  promised  to  pay  said  order,  and  then  and  there 

did  pay  unto  plaintiff  the  sum  of dollars  ($ ) 

thereon,  by  delivering  unto  plaintiff  said  C  D's  check  for  that 
amount,  which  check  was  duly  cashed,  and  further  then  and 
there  promised  to  pay  the  balance  of  said  order  in  a  few  weeks, 
and  having  so  promised,  retained  in  his  possession,  and  still 
retains  (so  far  as  plaintiff  is  informed)  the  said  original  order; 
by  means  whereof  the  defendants  then  and  there  became  liable 
to  pay  to  the  plaintiff  the  said  sum  of  money,  according  to  the 
tenor  and  effect  of  the  said  order,  and  of  the  said  acceptance 
thereof;  and  being  so  liable,  the  defendants,  in  consideration 
thereof,  then  and  there  promised  the  plaintiff  to  pay  to  it  the 
said  sum  of  money,  according  to  the  tenor  and  effect  of  the 

10  Turner  v.  Osgood  Art  Colortype  i3  Union  Stopper  Co.  v.  McGara, 
Co.,  223  111.  629,  637   (1906).  66  W.  Va.  409,  410. 

11  Carney  v.  Ionia  Transportation  i*  See  Section  211,  Note  60.  Pre- 
Co.,  157  Mich.  54,  59  (1909);  Tillis  cede  and  follow  this  and  all  other 
V.  Liverpool  &  London  &  Globe  Ins.  declarations  by  proper  commence- 
Cc,  supra.  nient  and  conclusion  if  not  given  in 

12  Evans   v.    Howell,   211   HI.    85,  form. 
92   (1904). 


ASSUMPSIT  351 

said  order  and  of  the  acceptance  thereof  aforesaid.  Yet  though 
often  requested  the  defendants  have  failed  to  pay  said  order 

(except  said  $ ). 

To  the  damage  of  the  plaintiff  for  the  sum  still  unpaid  on 
said  order,  namely,  dollars  ($ )  and  in- 
terest and  costs  thereon. 

948  Account,  credits 

A  check  is  no  settlement  of  an  account,  if  it  is  received  and 
cashed  in  part  payment  alone,  and  it  need  not  be  returned 
before  commencing  suit  for  the  balance.^ ^  The  same  rule  pre- 
vails where  a  creditor  is  paid  a  less  amount  in  full  satisfaction 
of  his  claim  under  an  agreement  which  is  void  on  account  of 
fraud,  the  amount  received  need  not  be  returned  before  in- 
stituting action  for  the  balance. ^^ 

949  Account,  open,  Narr.  (Miss.) 

The  defendant   is  indebted  to  plaintiff  in  the 

sum  of dollars  due  by  open  account  for  merchan- 
dise sold  and  delivered  by  the  plaintiff  to  the  defendant  at  his 

special   instance   and   request    ;   and   also   in   the 

sum  of dollars  for  merchandise  sold  and  delivered 

by  plaintiff  to  defendant  at  his  special  instance  and  request 

;  and  in  the  sura  of   dollars,  being 

the  amount  of  freight  charges  paid  by  plaintiff  on  some  of  the 
goods  so  sold  and  delivered  to  defendant.  And  being  so  in- 
debted the  defendant  undertook  and  promised  to  pay  plaintiff 

said  sum  of dollars and  the  remainder 

of  the  indebtedness  on with per  cent  inter- 
est from  maturity  of  said  bills  respectively.  And  though  often 
requested  so  to  do,  defendant  has  not  paid  said  sum  of  money 
or  any  part  thereof;  wherefore,  etc. 

950  Account  stated,  promise 

A  definite  verbal  promise  to  pay  a  sura  certain  will  support 
an  action  upon  an  account  stated. ^^ 

951  Account  stated,  Narr.  (111.) 

For  that  whereas,  the  said  defendant,  on,  to  wit,  the 

day  of ,  and  at  the  place  aforesaid,  accounted  to- 
gether with  the  said  plaintiff  of  and  concerning  divers  suma 

15  Eeed  v.  Engel,  237  111.  628,  633  n  Watkins  v.  Ford,  69  Mich.  357, 
(1909).      See   accord    and   satisfac-       362    (1888). 

tion. 

16  Hefter  v.  Cahn,  73  111.  296,  303 
(1874). 


352  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

of  money,  before  that  time  due  and  owing  from  the  said  de- 
fendant to  the  said  plaintiff  and  then  and  there  being  in  arrear 
and  unpaid,  and  upon  such  accounting  the  said  defendant  then 
and  there  was  found  to  be  in  arrear  and  indebted  to  the  said 

plaintiff  in  the  sum  of   dollars  of  lawful  money 

as  aforesaid.  And  being  so  found  in  arrear  and  indebted  to 
the  said  plaintiff  the  said  defendant,  in  consideration  thereol, 
afterwards,  to  wit,  on  the  same  day  and  year,  and  at  the  place 
aforesaid,  undertook  and  then  and  there  faith- 
fully promised  the  said  plaintiff  well  and  truly  to  pay  unto  the 
said  plaintiff  the  sum  of  money  last  mentioned,  when  the  said 
defendant  should  be  tliereunto  afterwards  re(|uesled. 

952  Account  stated  and  seizure,  Narr.  (Miss.) 

The  defendant  is  indebted  to  plaintiff  in  the  sum  of 

dollars  for  goods  and  merchandise  sold  and  delivered  to  defend- 
ant on  day  of and  for  freight  charges 

prepaid  on  the  same;  and  being  so  indebted  plaintiff  and  de- 
fendant accounted  together,  when  it  was  found  that  defendant 

was  indel)ted  to  plaintilY  in  the  sum  of   dollars 

with  interest  from   ;  and  the  defendant  then  and 

there  promised  to  pay  the  same.  Therefore,  plaintiff  asks  judg- 
ment for  said  sura  with  interest  and  cost  of  suit. 

Plaintiff  also  asks  that  a  writ  of  seizure  issue  for  said  goods 
now  in  the  hands  of  the  defendant  and  that  the  same  be  con- 
demned to  pay  the  said  indebtedness  and  interest  and  cost  of 
suit  and  that  'judgment  be  entered  accordingly. 

Plaintiff  files  herewith  an  account  or  bill  of  particulars  duly 
sworn  to ;  he  also  files  an  affidavit  describing  the  personal  prop- 
erty sold' defendant  and  now  in  his  possession;  and  it  is  a.sked 
that  a  writ  of  seizure  issue  for  the  seizure  of  the  property  and 
that  it  be  subjected  to  the  debt  due  plaintiff  with  interest  and 
all  costs  of  suit,  as  the  statute  provides,  that  judgment  over  be 
rendered  in  favor  of  plaintiff  for  the  balance  that  may  be  due 
after  subjecting  said  property. 

953  Account   stated   and   seizure,    affidavit   of   amount    due 
(Miss.) 

Before  me,  the  undersigned  officer,  in  and  for 

county  in  the  state  of ,  this  defendant  personally 

appeared  ,  who  being  duly  sworn,  states  that  he 

is  of  the   ,  a  corporation  organized 

under  the* laws  of  the  state  of ,  and  that  the  at- 
tached account  for dollars  with  interest  at 

on from against com- 
pany, of ,  Mississippi,  is  just,  correct  and  unpaid 

and  is  due  from  said against  whom  it  is  charged. 

Sworn,  etc. 


ASSUMPSIT  353 

954  Account  stated  and  seizure,  aiBBdavit  describing  property 
(Miss.) 

Before  me,  the  undersigned  officer,  in  and  for 

county,  state  of ,  this  defendant  personally  ap- 
peared   ,  being  by  me  first  duly  sworn,  states  that 

he  is of  the  ,  a  corporation  organ- 
ized under  the  laws  of  the  state  of ,  that  accord- 
ing   to    the    best    of    his    knowledge,    information    and    belief 

of    Mississippi,   defendant  in   the 

above  entitled  cause  against  whom  suit  has  been  or  is  about  to  be 

brought  by  the ,  is  indebted  to  said 

in  the  sum  of   dollars,  besides  interest,  for  the 

purchase  money  of  certain  personal  property,  which  personal 
property,  according  to  affiant's  information  and  belief  is  now 

in   the   possession   of  said   defendant  in   the    of 

district    of     county,    Mississippi, 

Said  personal  property  consists  of  the  following,  sold , 

to  wit:     (Describe  property). 

Affiant  further  states  that  said  indebtedness  is  now  past  due 
and  that  the  defendant  is  liable  to  pay  the  same. 


Sworn,  etc. 

955  Account  stated  and  seizure,  writ  (Miss.) 

State  of  ]\Iississippi. 
To  the  sheriff  of county,  greeting: 

Whereas  in  the  case  of v ,  in  the 

circuit  court  of district  of county, 

plaintiff  has  brought  suit  to  recover  the  sum  of 

dollars  with  interest  thereon  at  the  rate  of per  cent 

per  annum,  as  shown  in  the  declaration  in  said  cause,  being 
for  the  purchase  money  of  certain  personal  property  in  pos- 
session of  said  defendant,  which  purchase  money  is  due  and 
unpaid.  Said  property  is  described  as  follows :  (Set  forth  de- 
scription of  property),  being  the  property  sold  and  delivered 
by  plaintiff  to  defendant. 

You  are  therefore  commanded  to  deal  with  said  property, 

as  in  case  of  attachment  for  debt  so  as  to  compel  said 

to   appear   before   circuit   court   of    district   of 

county,  INIississippi,  at  the  next  term  thereof  to  be 

held  at  the  court  house,  in  the   of  , 

on  the in ,  19 .  .  ;  and  we 

command  that  you  summon  said  ,  if  he  be  found 

in  your  county,  to  appear  and  answer. 

Have  then  and  there  this  writ  with  your  proceedings  en- 
dorsed thereon. 

Witness  (by  the  clerk,  etc.) 


354  ANNOTATED   FORMS  OF   PLE^VDING   AND   PRACTICE 

Return 

Executed  by  taking  into  my  possession  (Describe  property) 

of  within  named  found  in  possession  of ;  the  other 

(Describe  property)  not  found ,  and  executed  fur- 
ther by  delivering  to  (date),  a  true  copy  of  this 

writ  on  the  same  day. 

(Signature) 

956  Accounting,  action 

An  action  of  assumpsit  is  not  an  appropriate  remedy  to  set- 
tle intricate  and  disputed  accounts  between  parties.*^ 

957  Alimony,  Narr.  (Va.) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the  

(|j^y  of 10.  .,  tln'  said  jdaintifT  herein 

was  the  plaintiff  and  the  said  defendant  hereto  was  defendant 

in  a  certain  action  then  pending  in  the   court  of 

state  of ,  which  action  was  brought 

to  obtain  an  absolute  divorce  for  the  said  plaintiff  from  the 
said  dofondant,  they  being  at  that  time  husband  and  wife,  and 
which  said  action  resulted  in  the  granting  by  the  court,  of  an 
absolute  divorce,  of  the  said  plaintiff  from  the  said  defendant; 
that  pending  the  determination  of  the  said  suit,  the  said  plain- 
tiff, by  and  through  her  attorneys, and , 

made  and  entered  into  a  certain  contract  in  writing  with  the 
said  defendant  who  in  making  the  said  contract,  acted  ])y  and 

through  his  attorney,   ,  which  said  contract  is  in 

the  words  and  figures  following,  to  wit:    (Insert  contract). 

That  after  the  execution  of  the  said  contract,  the  said  de- 
fendant acting  thereon,  and  recognizing  his  liability  thereunder, 
paid  to  the  said  plaintiff  or  her  attorneys,   the  said  sum  of 

dollars,  in  the  said  contract  mentioned,  as  her 

attorney's  fee,  and  from  the  time  of  the  execution  of  the  said 

contract,  also  paid  to  the  said  plaintiff,  said  sum  of 

dollars  per  week,  in  the  said  contract  specified,  up  to  the  week 

ending     ,    19..       And    the    said    plaintiff    avers 

that  afterwards,  to  wit,  on  the day  of , 

19..,  the  said  plaintiff  made  and  entered  into  a  certain  other 
contract  in  writing  with  the  defendant,  in  which  last  mentioned 
contract,  it  was  recited  that  there  was  then  pending  between 
the  plaintiff  and  the  defendant  certain  suits,  among  which  was 
a  suit  for  divorce  in  one  of  the  courts  of ,  brought 

18  Leigh  V.  National  Hollow  Brake- 
Beam  Co.,  223  111.  407,  410   (1906). 


ASSUMPSIT  355 

by   (the  plaintiff  herein)   v (the 

defendant  herein),  and  among  other  things  in  the  said  con- 
tract it  was  agreed  between  the  plaintiff  and  the  defendant,  as 
follows:  (Insert  agreement.) 

An  the  said  plaintiff  says  that  the  suit  for  divorce  referred 
to  in  the  said  last  mentioned  contract  is  the  same  suit  for  di- 
vorce referred  to  in  the  first  mentioned  contract,  and  by  the 
alimony  referred  to  in  the  last  of  the  said  contracts  the  said 
parties  meant  and  intended  the  said  sum  of dol- 
lars per  week,  stipulated  in  the  first  mentioned  of  the  said  con- 
tracts, to  be  paid  to  the  plaintiff  as  alimony. 

Nevertheless,  the  said  defendant,  not  regarding  his  said  sev- 
eral promises  and  undertakings  in  the  said  contract  specified, 
hath  not,  nor  has  any  one  for  him,  paid  to  the  said  plaintiff, 

the  said  sum  of dollars  per  week  from  and  since 

the  week  ending ,  19 .  . ,  to  the 

day  of    ,   19..,  or  any  part  thereof,   although 

often  requested  so  to  do,  but  the  same  to  pay  hath  hitherto 
wholly  neglected  and  refused  and  still  doth  neglect  and  refuse, 
to  tlie  damage  of  the  said  phiintift', dollars. 

And  therefore  she  brings  her  suit. 

P-  q- 

958  Assignment  of  claim  for  use  and  occupation,  Narr.  (Md.) 

And  for  that  the  said  defendant  was  indebted  to 

for  defendant's  use  and  occupation  of  certain  messauges,  lands 

and  tenements  of  said   ,  situate  on   

avenue,  between and ,  in 

•  ••••.. county,  state  of  Maryland,  with  said 

permission ;  which  claim  against  the  said said 

duly  assigned  in  writing  to  the  plaintiff;  and  the  plaintiff's 
claims dollars. 

959  Assignment  of  partnership  account  or  note,  Narr.  (Mich.) 

That  heretofore,  to  wit,  on day  of , 

to  wit,  at  the  of ,  in  said  county 

of   ,  said  defendant  was  indebted  to  the  firm  of 

for  goods,  wares  and  merchandise  heretofore  sold 

and  delivered  by  said  firm  to  said  defendant  in  the  sum  of 

dollars,  which  said  indebtedness  appeared  in  an 

open  account  on  the  books  of  account  of  said  firm  against  said 

defendant ;  that  afterwards,  to  wit,  on  or  about  the 

day  of ,  19 .  . ,  the  said  firm  assigned  i* 

to  said  plaintiff  all  and  singular  the  said  indebtedness  account 

10  An  averment  of  assignment  or  prising  the  assignor.     Wyckoff,  Sea- 
transfer  of  an  account  or  note  by  a  mans  &  Benedict  v.  Bishop,  98  Mich, 
partnership  to  the  plaintiff  need  not  352,   354    (1894). 
specify  the  individual  members  com- 


356  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

and  demands  against  said  defendant;  wherefore  the  said  plain- 
tiff avers  that  the  said  defendant   heretofore,  to   wit,  on   the 

day  of ,  1 !) .  . ,  at  the 

,  of ,  in  the  said  county  of 

was  indebted  to  the  plaintiff  as  assignee  aforesaid  in  the  sum  of 

dollars  for  the  price  and  value  of  goods  then  and 

there  sold  and  delivered  by  the  plaintiff"  as  assignee  aforesaid 
to  the  defendant  at  his  re(iuest.     (Add  common  counts) 

And  thereupon  the  said  defendant  afterwards,  on  the  day  and 
year  aforesaid,  in  consideration  of  the  premises  respectively, 
then  and  there  promised  the  plaintiff  as  assignee  aforesaid  to 
pay  it,  the  said  several  sums  of  money  respectively  on  request; 
yet  said  defendant  has  disregarded  the  said  promises  and  has 
not  (although  often  recjuested  so  to  do)  paid  any  of  the  sums 
of  money,  or  any  part  thereof;  to  the  phiintiff's  damage  as  as- 
signee aforesaid  of dollars,  and  therefore  it  brings 

suit,  etc. 

960  Automobile  insurance,  Narr.  (Md.) 

(Precede  this  by  common  counts)      And   for  that   on   the 

day    of    ,    in    the   year    19 . . ,    the 

said  defendant,  body  corporate,  by  its  policy  of  insurance  No. 

,  in  consideration  of  the  sum  of   dollars 

premium  paid  to  said  body  corporate,   did  insure   and  cause 

,  the  above  named  plaintiff",  to  be  insured,  at  and 

from  the    day  of    ,   19 . . ,  at  noon, 

until  the    day  of    ,   19 . . ,  at  noon, 

to  the  amount  of    dollars,  upon   the  automobile 

belonging  to  the  plaintiff.  No ,  and  its  ef|uipment  and 

outfit  on  board,  the  make  of  said  automobile  being  " " 

(touring),  wherever  they  may  be  in  the  United  States  and 
Canada,  against  the  risks  of  fire,  explosion,  self-ignition,  light- 
ning, and  against  sundry  other  risks  in  said  policy  mentioned. 

That  on  or  about  the  day  of  ,  in 

the  year  19.  .,  the  aforesaid (touring)  auto- 
mobile, No ,  and  its  equipment  and  outfit  on  board  be- 
longing to  said  plaintiff  were  totally  destroyed  by  fire,  while 
said  automobile  was  being  used  in  the  United  States ;  and  that 
said  plaintiff  has  fully  and  completely  performed  all  of  the 
terms  and  conditions  of  said  policy  of  insurance  issued  by  said 
defendant  to  said  plaintiff'  on  his  part  to  be  performed,  and 
prior  to  the  destruction  by  fire  of  said  automobile,  as  aforesaid, 
had  paid  to  said  body  corporate,  its  agents  and  servants,  the 
agreed  upon  premium  of  dollars,  in  considera- 
tion of  which  the  aforesaid  policy  of  insurance  was  issued  by 
said  defendant  to  said  plaintiff. 

That  by  reason  of  the  fire  aforesaid,  the  aforesaid  automo- 
bile and  its  equipment  and  outfit  on  board  were  totally  destroyed 
and  completely  lost  to  said  plaintiff,  and  said  plaintiff  notified 


ASSUMPSIT  357 

said  defendant  of  said  fire  and  said  complete  loss,  and  made 
demand  upon  said  defendant  for  the  amount  due  by  said  de- 
fendant to  said  plaintitf,  to  wit,  the  sum  of dol- 
lars ;  and  said  plaintiff  has  otherwise  fully  and  completely  com- 
plied with  all  the  requirements  of  his  contract  of  insurance  with 
said  defendant  on  his  part  to  be  performed,  but  that  said  de- 
fendant has  failed  and  refused  to  pay  said  plaintiff  the  afore- 
said amount  of  fifteen  hundred  dollars,  and  continues  to  fail 
and  refuse  to  pay  the  same. 

And  the  plaintiff  claims dollars. 

Affidavit  of  claim 

State  op  IMaryland, 

City  of ,  Set: 

I  hereby  certify,  that  on  this day  of , 

19 ,  before  me,  the  subscriber,  a  notary  public,  by  letters 

patent  under  the  great  seal  of  the  state  of  Maryland,  commis- 
sioned and  duly  qualified,  residing  in  the  city  and  state  afore- 
said,  personally   appeared    ,   the   duly   authorized 

agent  of   ,  the  within  named  plaintiff,  and  made 

oath  in  due  form  of  law  that  there  is  justly  due  and  owing  by 

insurance  company,    ,  of    , 

the  defendant  in  the  within  case  to  the  plaintiff'  on  the  annexed 
policy  of  insurance,  the  cause  of  action  in  said  cause,  the  sum 

of  $ with  interest  from  the   day  of 

,  19.  .,  to  the  best  of  his  knowledge  and  belief; 

and  he  further  swears  that  the  plaintiff  is  absent  from  the  state 
of  Maryland,  and  that  he  is  the  agent  of  the  said  plaintiff',  and 
duly  authorized  to  make  this  affidavit,  and  has  personal  knowl- 
edge of  the  matters  therein  stated. 

As  witness  my  hand  and  notarial  seal. 


Notary  Public. 

961  Bailment,  action 

Assumpsit  is  maintainable  for  the  value  of  property  which 
has  been  taken  under  a  contract  of  bailment  and  converted,  the 
value  of  the  property  at  the  time  of  the  making  of  a  demand  for 
it  being  the  measure  of  damages.^o 

982  Bank  deposit,  Narr.  (Md.) 

fPrecede  this  by  common  counts)    And  for  that  the  plaintiff 

on  or  about  the    day  of    ,   19 , 

deposited,  subject  to  her  order,  with  the  said  defendant,  then 

20  Ciishman  v.  Haves,  46  111.  145, 
156  (1867). 


358  ANNOTATED   FORMS   OF   PLEADING    AND   PRACTICE 

and  ever  since  carrying  on  a  duly  authorized  banking  busi- 
ness in county,  in  the  state  of  .Maryland,  the  sum 

of dollars ;  that  tlie  plaintili'  on  or  about  the 

day  of ,  ID .  . ,  demanded  from 

the  said  defendant,  the  said  sum  of dollars,  which 

said  sum  or  any  part  thereof,  the  said  defendant  refused  and 
ever  since  has  refused  and  now  refuses  to  pay  to  the  plaintitf. 
And  the  plaintiff  claims dollars. 


Attorney  for  plaintiff. 

963  Bill  of  exchange;  exceptor,  liability 

The  acceptor  of  a  bill  of  exchange  becomes  primarily  liable 
for  its  payment  and  is  considered  the  principal  debtor,  regard- 
less of  whether  the  acceptance  is  for  the  accommodation  of  the 
drawer  or  whether  the  acceptor  has  funds  of  the  drawer  in  his 
hands  to  pay  it.-^ 

964  Bill  of  exchange ;  declaration,  requisites 

In  a  declaration  upon  a  bill  of  exchange  or  check,  it  is  not 
necessary  to  state  the  names  of  the  parties  to  the  instrument, 
unless  they  are  plaintiffs  or  defendants.  So  that  the  allegation 
that  "a  certain  person"  made  the  check  or  bill  is  sufficient  in 
an  action  brought  by  the  holder  of  the  cheek.22 

965  Bill  of  exchange;  drawee  v.  drawer,  Narr.  (111.) 

For  that  whereas,  the  said  defendant  heretofore,  to  wit,  on 
the day  of ,  19 .  . ,  at . . ,  Illi- 
nois, to  wit,  at  the  county  and  state  aforesaid,  made  his  certain 
bill  of  exchange  in  writing  and  directed  the  same  to  the  said 

plaintiffs  under  the  name  and  style  of and  therein 

and  thereby  requested  the  said  plaintitl's  to  pay  to  the  order 
of said being  then  and  there  a  part- 
nership firm  composed  of the  sum  of 

dollars  at  the  sight  of  said  bill  of  exchange;  which  said  bill  of 
exchange  afterwards,  to  wit,  on  the  day  and  year  aforesaid  at, 

to  wit,  the  place  aforesaid,  said and , 

partners  as  aforesaid  under  the  name  and  style  of , 

by  writing  on  the  back  thereof  endorsed  and  directed  to  be  paid 

to  the  order  of ;  and  the  said  plaintiffs  afterwards, 

to  wnt,  on  the  day  and  year  aforesaid,  at,  to  wit,  the  place  afore- 
said, paid  to  the  said ,  he  being  then  and  there 

21  Huston  V.  Newgass,  234  111.  western  National  Bank,  152  111.  296, 
285,  291    (1908).  305  (1894). 

22  First  National  Bank  v.  North- 


ASSUMPSIT  359 

the  endorsee  and  holder  of  said  bill  of  a  exchange,  the  said 
sum  of dollars,  as  the  said defend- 
ant on  his  said  bill  of  exchange  had  thereunto  directed  them, 
the  said  plaintiffs ;  and  in  consideration  of  which  payment  made 
as  aforesaid,  defendant,  on,  to  wit,  the  day  and  year  aforesaid, 
at,  towit,  the  place  aforesaid,  became  liable  to  pay  to  said  plain- 
tiffs the  said  sum  of dollars,  w^hen  requested  so 

to  do,  and  being  so  liable,  in  consideration  thereof,  the  said  de- 
fendant then  and  there  undertook  and  promised  to  them,  the 
said  plaintiff's,  to  pay  to  them,  the  said  plaintiffs,  the  said  sum 

of  dollars  when  thereunto  afterwards  requested. 

Yet,  etc. 


966  Bill  of  exchange;  indorsee  v.  acceptor,  Narr.  (D.  C.) 

For   that  heretofore,   to  wit,   on   the    day  of 

,  at  made  its   certain 

several  bills  of  exchange  in  writing,  each  bearing  date  the  day 
and  year  aforesaid,  and  thereby  then  and  there  requested  the 

defendants    trading    as    in     and 

months   respectively   from   date   to   -pay  to   the 

order  of  the  said  at  for  value  re- 
ceived the  sum  of upon  each  of  said  several  bills 

of  exchange;  that  afterwards,  to  wit,  on  the  day  and  year 
aforesaid,  tiie  said  several  bills  of  exchange  were  duly  presented 

to  the  said  firm  of ,  for  acceptance,  and  the  said 

firm,  by  the  name  of upon  sight  thereof,  accepted 

the  same  in  writing,  and  affixed  thereto  the  genuine  signature 

of  the  said  firm ;  that  the  said before  the  maturity 

of  any  of  said  bills  of  exchange  and  before  the  payment  of  said 
sums  of  money  therein  specified,  or  any  part  thereof,  for  value, 
and  in  the  usual  course  of  business,  endorsed  each  of  said  in- 
struments and  delivered  the  same  to  the  plaintiff;  that  at  the 
respective  dates  of  their  maturity,  the  said  bills  of  exchange 
were  duly  presented  for  payment,  and  the  plaintiff  then  and 
there  demanded  payment  of  the  respective  sums  of  money 
therein  named;  but  neither  of  the  defendants,  nor  any  other 
person,  did  or  would,  at  that,  or  at  any  other  time,  pay  the 
said  sums  of  money  or  any  part  thereof,  but  so  to  do  hath 
wholly  neglected  and  refused ;  by  means  whereof  the  defendants 
became  liable  to  pay  to  the  plaintiff  the  said  sums  of  money 
when  they  should  be  thereuneto  requested,  and  being  so  liable, 

the  defendants  afterward,  to  wit,  on  the  day  of 

,   at  the  District  of  Columbia,  promised  to  pay 

to  the  plaintiff  the  said  sums  of  money  on  request;  they  have 
wholly  disregarded  their  promise  and  have  not  paid  to  the 
plaintiff  the  said  sums  of  money  or  any;  part  thereof.  Where- 
fore, etc. 


360  ANNOTATED   FORMS  OP   PLEADING   AND  PRACTICE 

967  Building  contract;  architect's  certificate 

The  certificate  of  an  architect  as  to  tlie  ainonnt  due  uiulor  a 
building  contract  is  a  condition  precedent  to  the  riglit  to  de- 
mand payment,  and  can  only  be  attacked  for  fraud  or 
mistake.-"*  An  architect's  certificate  which  is  re(iuired  to  be 
issued  under  a  buikling  contract  must  be  considered  and  taken 
as  a  whole,  rejecting  none  of  its  parts.-^ 


968  Building-  contract;  apartment,  Narr.  (111.) 

For  that  whereas,  the  said  plaintiff  heretofore  entered  into 
certain  articles  of  agreement  in  writing,  made  and  concluded 

on  the day  of ,  19..,  by 

and  between  said  plaintiff  and  said  defentlaut.  v.iierein  and 
whereby  the  said  plaintitt'  agreed  with  said  defendant  to  fur- 
nish the  labor  and  material  for  the  excavation  and  mason  work 

of  a  certain story  apartment  house,  to  be  erected 

on    the     corner    of    avenue    and 

street,  in  the  city  of  ,  county  and 

state  aforesaid;  and  under  which  said  agreement  the  said  plain- 
tiff did  do  the  work  and  la])or  and  did  furnish  the  material 
according  to  the  terms  of  said  contract  in  all  and  every  respect 
as  therein  provided,  as  by  said  contract  ready  to  be  produced 
was  provided  that  all  questions  of  damages,  allowances  for 
in  court  will  more  fully  appear ;  and  in  which  said  contract  it 
extra  work  or  work  left  out,  payments  upon  said  contract,  and 
all  questions  as  to  the  true  intent  and  meaning  of  said  con- 
tract  shall  be   referred  to    as  arbitrator,   whose 

decisions  should  be  final  and  binding,  upon  both  parties;  yet, 
notwithstanding  said  contract,  as  aforesaid,  the  defendant  act- 
ing under  the  direction,  instruction  and  advice  of  said  archi- 
tect, who  w-rongfully,  fraudulently  and  unjustly  acted  as  the 
agent  and  attorney  for  said  defendant  and  wholly  failed  to  act 
as  an  arbitrator  under  said  contract,  and  said  defendant  con- 
spiring with  said  architect  to  defraud  said  plaintiff  by  deduct- 
ing large  sums  of  money  for  delays  alleged  to  have  been  caused 
by  said  plaintiff,  and  upon  other  false  and  pretended  charges, 
deducted  large  sums  of  money  from  the  amount  due  said  plain- 
tiff, has  neglected  and  refused,  and  still  does  neglect  and  re- 
fuse, to  carry  out  and  fulfill  his  part  of  said  contract  by  him 
to  be  kept  and  performed,  or  any  part  thereof,  or  to  pay  the 
plaintiff  the  sums  of  money  still  due  him  thereunder,  to  the 
great  damage  of  said  plaintiff  in  the  sum  of dol- 
lars; and  therefore  he  brings  his  suit,  etc. 

23  Weld   V.   First   National  Bank,  24  Weld  v.   First   National   Bank, 

255  111.  43,  48    (1912).  255  111.  47. 


ASSUMPSIT  361 

969  Building  contract;  building,  Narr.  (Va.) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the 

day  of  ,  nineteen  hundred  and ,  the 

said  plaintiff  at ,  Virginia,  at  the  special  instance 

and  request  of  said  defendant,  did  by  a  written  contract  retain 
and  employ  the  said  defendant  (he  the  said  defendant  then 
and  there  being  a  contractor  for  the  erection  of  buildings)  in 
the  way  of  his  said  business  of  a  contractor,  to  erect  a  certain 

two-story  building  at  the corner  of 

and  streets,  in  the  city  of ,  Vir- 
ginia, and  to  make  and  lay  a  floor  in  said  building,  as  will 
more  fully  appear  from  said  written  contract,  which,  is  in 
words  and  forms,  as  follows,  to  wit:   (Insert  contract.) 

And  in  consideration  thereof,  and  also  in  consideration  of  a 
certain  reasonable  reward  to  the  said  defendant  in  that  behalf, 
to  wit, dollars  ($ ),  paid  by  the  said  plain- 
tiff to  said  defendant,  he  the  said  defendant  then  and  there,  to 

wit,  on  the  day  and  year  aforesaid,  at  ,  Virginia, 

aforesaid,  undertook,  and  then  and  there  faithfully  promised 
the  said  plaintiff  to  erect  said  tw^o-story  building  and  to  make 
and  lay  therein  said  floor  in  a  workmanlike  and  skilful  man- 
ner, and  that  the  workmanship  should  be  first-class  in  every 
respect  and  satisfactory  to  the  said  plaintiff.  And  the  said 
defendant  knew  the  purposes  for  which  the  said  building  was 
to  be  erected  and  the  uses  to  which  the  said  floor  would  be  put, 
to  wit,  the  manufacture  of And  the  said  plain- 
tiff has  performed  all  parts  of  said  contract  by  him  to  be  per- 
formed. 

But,  the  said  defendant  not  regarding  his  said  promises  and 
undertakings,  unskilfully,  carelessly,  negligently  and  improp- 
erly made  and  laid  out  the  granolithic  floor  in  said  building 
and  improperly  used  such  improper  materials  in  making  said 
granolithic  floor  and  improperly  mixed  the  ingredients  for  mak- 
ing and  laying  said  granolithic  floor,  and  improperly  con- 
structed the  lower  stratum  or  concrete  foundation  of  said 
granolithic  floor  upon  which  the  upper  stratum  was  laid,  and 
improperly  constructed  the  upper  stratum  or  wearing  surface 
of  said  granolithic  floor,  and  improperly  failed  to  water  the 
lower  stratum  or  wearing  surface,  and  improperly  failed  to 
care  for  said  granolithic  floor  after  it  had  been  laid  and  to  do 
M-hatever  was  necessary  to  make  said  floor  harden ;  and  unskil- 
fully carelessly,  negligently  and  improperly  attempted  to  patch, 
remake  and  relay  said  granolithic  floor,  that  through  the  mere 
unskilfuluess,  carelessness,  negligence  and  improper  conduct  of 
the  said  defendant  in  this  behalf,  it  became  and  was  necessary 
for  the  said  plaintiff  to  cause  a  new  floor  to  be  laid  and  also 
therebj",  he,  the  said  plaintiff,  was  forced  and  obliged  to  and 
did  necessarily  lay  out  and  expend  a  large  sum  of  money  in 
and  about  the  making  and  laying  of  a  new  floor,  to  the  great 


362  ANNOTATED  FORMS  OP  PLEADING  AND  PRACTICE 

damage  of  the  said  plaintiff.  And  although  often  requested 
so  to  do,  the  said  defendant  hath  not  as  yet  paid  to  the  said 
plaintiff  the  said  sum  of  money,  or  any  part  thereof,  but  to  pay 
the  same  hath  hitherto  wholly  neglected  and  refused,  and  still 
doth  neglect  and  refuse,  to  the  damage  of  said  plaintiff  of 
dollars.    And  therefore  he  brings  his  suit. 

970  Building  contract ;  church,  Narr.  (Md.) 

For  that  the  said  plaintiff  and  defendants,  on  the 

day  of ,  in  the  year  nineteen  hundred  and , 

entered  into  a  written  agreement,  signed  and  sealed  by  the 
said  plaintiff  and  the  said  defendants,  under  which  the  said 
plaintiff  bound   himself  to   erect   for  the   said   defendants   in 

county  a  certain  church  building,  to  be  known  as 

,  exclusive  of  all  masonry  work,  which  said 

masonry  work  the  defendants  were  bound  to  provide  to  be  done 
in  a  proper  and  suitable  manner  before  the  said  plaintiff  could 
execute  his  part  of  the  said  agreement ;  and  that  the  said  de- 
fendants failed  to  perform  their  part  of  said  agreement,  in 
that  they  did  not  erect  suitable  or  proper  masonry  work,  as  in 
the  said  agreement  they  were  bound  to  do ;  and  by  reason  of 
said  failure  by  said  defendants  to  perform  their  part  of  said 
agreement,  as  aforesaid,  the  plaintiff  in  the  erection  and  comple- 
tion of  the  said  church  under  said  agreement  suffered  great 
loss  and  damage. 

And  the  plaintiff  claims  therefor  dollars. 

971  Building  contract;  factory,  Narr.  (Md.) 

(Precede  this  by  common  counts)     And  for  that  the  plain- 
tiffs contracted  with  the  defendants  on , 

19 . . ,  and  on ,  19 . . ,  to  build  a  fac- 
tory building  and  to  extend  the  same  in  accordance  with  the 
terms  of  said  contracts  annexed  hereto  and  hereby  made  a  part 
hereof,  and  by  the  second  of  said  contracts,  the  plaintiffs  agreed 
to  put  in  certain  floors  at  the  prices  therein  stipulated,  upon  an 
election  to  be  made  by  the  defendants,  and  the  defendants  later 
verbally  elected  to  have  a  cement  floor  throughout  the  new 
factory  building  as  well  as  the  factory  building  in  the  first  con- 
tract above  referred  to,  and  in  accordance  with  the  terms  of 
said  contracts,  the  plaintiffs  prepared  and  furnished  all  ma- 
terials and  erected  a  one-story  building  at  the  northwest  cor- 
ner of streets, ,  Maryland,  and  the 

said  materials  were  furnished  and  the  said  work  was  done  in 
accordance  with  the  drawings  and  specifications  submitted  by 
the  builders  after  due  notice  to  commence  said  work  was  given 
to  the  plaintiffs  by  the  defendants;  and  all  other  things  required 
by  said  contracts  to  be  done  by  the  plaintiffs  were  done  and 
performed  by  them;  and  the  said  plaintiffs  further  extended 


ASSUMPSIT  363 

the  building  on  said  property  so  as  to  cover  the  defendants' 

entire  lot  on    street,   and  the   plaintiffs   further 

placed  cement  floorings  through  the  entire  building  referred 
to  in  said  contracts;  and  by  reason  thereof,  the  defendants 
promised  and  became  obligated  to  pay  to  said  plaintiffs  the 

sum  of dollars  ($ )  but  the  defendants  have 

not  paid  the  same  nor  any  one  for  them,  except  so  far  as  is 
shown  by  the  account  annexed  to  the  affidavit  in  this  suit,  which 
is  made  a  part  hereof. 

And  the  plaintiffs  claim dollars  ($ )  dam- 
ages. 

972  Checks;  drawee  v.  collectings  bank  (forged  maker  and 
payee),  Narr.  (111.) 

25  For  that  whereas,  heretofore,  to  wit,   in  the 

year  of  our  Lord    ,  at ,  to  wit,  at 

said    county,  a  certain  person  made  and  drew, 

by  and  under  the  style,  description  and  addition  of 

a  certain  draft  or  order  in  writing  for  the  payment  of  money, 
commonly  called  a  check  on  a  bank,  the  said  check  being  then 

and  there  entitled  with  the  heading  or  title   and 

being  then  and  there  numbered  wnth  the  number 

and  iDearing  date  of  a  certain  day  and  year  therein  mentioned, 
to  wit,  the  day  and  year  last  aforesaid,  and  then  and  there 
caused  said  check  to  be  countersigned  by  and  under  the  style, 

description  and  addition  of   and  then  and  there 

directed  the  said  check  to  the  said  plaintiff  by  the  name,  style 

and  description  of   and  thereby  then  and  there 

requested  the  said  plaintiff  byi  the  name,  style  and  description 

last    aforesaid,    to    pay    to    the    order    of    one 

describing  him  in  the  said  check,  by  the  style, 

description   and   addition  of    ;  ^^    and   after 

the  aforesaid  making  of  the  said  check,  to  wit,  on  the  day  and 

year  last  mentioned,  to  wit,  at  said  county  of  , 

some  person  or  persons  to  the  plaintiff'  unknown,  wickedly  con- 
triving to  defraud,  etc.,  without  the  authority,  consent  or  rati- 
fication at  any  time  of  him  the  said  and  with- 
out the  knowledge  of  the  said  plaintiff,  falsely  simulated  and 
forged  on  the  said  check  in  the  words  and  figures  following,  to 

wit,    the    endorsement    and    order   of   the    said 

to  W'hose  order  the  said  sum  of  money  was  in  and 

by  said  check  ordered  to  be  paid,  and  then  and  there  caused 
the  said  check  so  bearing  said  forged  endorsement  and  order 
to  be  placed  in  the  hands  of  certain  persons  trading  under  the 
style  and  firm  name   of    who, 

25  See  Section  987.  county,  upon  sight  there- 

26  If  cheek  was  accepted,  insert:  of,  accepted  in  writing  on  the  face 
•which  said  check  the  said  plaintiff,  thereof  in  the  words  and  figures  fol- 

afterwards,  to  wit,  on  the day  lowing,   to  wit,    (give  form   of   ac- 

of    ,  in  the  year  of  our  ceptance). 

Lord  last  aforesaid,  to  wit,  at  said 


364  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  to  wit, 

at  said    county,  to  give  credit  and  currency  to 

the  said  forged  endorsement  and  order,  further  endorsed  said 
check  under  said  forged  endorsement  and  order,  in  the  words 

and  figures  following:     (Give  form  of  endorsement)    

and  then  and  there  deliv- 
ered the  said  check,  so  endowed,  to  the  said  defendant;  and 

the  said  defendant,  afterwards,  to  wit,  on  the day 

of in  the  year  of  our  Lord  last  aforesaid,  to  wit,  at 

said    county,   seeking   antl    re( (nesting    from    the 

said  plaintiif  the  payment  to  it,  the  said  defendant,  upon  the 
said  check,  of  the  said  sum  of  money  therein  rec^uired  to  be 

paid  to  the  order  of  the  said   

and  to  give  further  currency   and  credit  to   the  said  forged 

endorsement  and  order  of  the  said   

then  and  there  on  the  said  check,  and  to  induce  the  said  plain- 
tiff to  make  the  said  re(iuested  payment  to  it,  the  said  defend- 
ant, notwithstanding  said  forged  endorsement  and  order,  did 
then  and  there,  the  said  plaintiff  l)eing  still  ignoi-ant  of  said 
forged  endorsement  and  order,  fiii-ther  endorse  the  said  check, 
after  said  forged  endorsement  and  order,  in  the  words  and 
figures  following,  to  wit :  (Insert  copy  of  clearing  house  stamp) 

and  then  and  there,  through  the  said  

presented  the  said  check,  then  and  there  so  endorsed  with  said 
forged  endorsement  and  order  and  with  the  several  other  en- 
dorsements aforesaid,  to  the  said  phiintiff  for  the  said  payment 
thereon  so  as  aforesaid  sought  and  requested  by  the  said  de- 
fendant. 

And  the  plaintiff  avers  that  thereby,  and  because  of  the  said 
several  premises,  and  under  and  by  virtue  of  the  law  of  the 
land,  to  wit,  the  law  of  merchant,  and  by  the  intendment  and 
implication  of  such  law  upon  the  facts  aforesaid,  the  said  de- 
fendant, in  consideration  thereof  and  that  the  said  plaintiff 
would  make  to  the  said  defendant  on  the  said  check  the  said 
payment  so  as  aforesaid  sought  and  requested,  did,  when  the 
said  check  was  so  as  aforesaid  by  it,  the  said  defendant,  pre- 
sented to  the  said  plaintiff  for  the  said  payment,  to  wit,  on  the 

day  and  year  last  aforesaid,  to  wit,  at  said 

county,  vouch  for  and  warrant  to  the  said  plaintiff  that  the 

said  forged  endorsement  and  order  of  the  said  

■ then  and  there  on  the  said  check  was  the  true 

and  genuine  endorsement  and  order  of  the  said 

•, ;  and  the  said  plaintiff,  confiding  in  the  said 

warranty  of  the  said  defendant  and  in  consideration  thereof, 
did  when  the  said  check  was  so  as  aforesaid  presented  to  it, 
by  the  said  defendant,  for  such  payment,  to  wit,  on  the  day 

and  year  last  aforesaid,  to  wit,  at  said county, 

being  still  ignorant  of  the  said  forged  endorsement  and  order' 
thereupon  make  the  said  requested  payment  to  the  said  de- 
fendant upon  the  said  check  of  the  said  sum  of  money  thereby 


ASSUMPSIT  365 

required  to  be  paid  to  tlie  order  of  the  said   

upon  receiving  which  payment  the  said  de- 
fendant then  and  there  delivered  to  tlie  said  plaintiff  the  said 
check  then  and  there  so  endorsed  with  said  forged  endorse- 
ment and  order  and  with  the  several  other  endorsements  afore- 
said. 

And  the  said  plaintiff  having  afterwards,  to   wit,   on  the 

in  the  year  of  our  Lord  last 

said.     And  the  said  plaintiff  having  afterwards,  to  wit,  on  the 

aforesaid,  to  wit,  at  said   county,  discovered  the 

fact  of  said  forged  endorsement  and  order,  then  and  there  noti- 
fied the  said  defendant  thereof;  and  further  confiding  in  the 
aforesaid  Avarranty  of  the  said  defendant,  then  and  there  ten- 
dered to  the  said  defendant  the  said  check,  so  endorsed  with 
said  forged  endorsement  and  order  and  with  the  several  other 
endorsements  aforesaid,  and  then  and  there  demanded  of  the 
said  defendant  that  it,  the  said  defendant,  should  make  good 
its  said  warranty,  and  in  that  behalf  should  pay  back  to  the 
said  plaintiff  the  said  sum  of  money  so  as  aforesaid  by  the 
said  plaintiff'  paid  to  the  said  defendant. 

By  means  whereof,  and  because  of  said  several  premises,  the 
said  defendant  then  and  there  became  liable  to  pay  to  the  said 
plaintiff  the  said  sum  of  money  last  mentioned  when  the  said 
defendant,  should  be  thereunto  afterwards  requested;  and 
being  so  liable  the  said  defendant,  in  consideration  thereof, 
afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  to  wit, 

at  said  county,  undertook,  and  then  and  there 

faithfully  promised  the  said  plaintiff  to  pay  to  it  the  said  last 
mentioned  sum  of  money  when  the  said  defendant  should  be 
thereunto  afterwards  requested.  (Add  common  indebitatus 
assumpsit) 

973  Checks;  indorsee  v.  drawee,  Narr.  (111.) 

For  that  whereas  C  K  heretofore,  to  wit,  on  the 

day  of ,  19 . . ,  at ,  to  wit,  at  the 

county  of aforesaid,  according  to  the  usage  and 

practice  of  merchants,  made  their  certain  order  in  writing  for 
the  payment  of  money,  commonly  called  a  bank  check,  bearing 
date  a  certain  day  and  year  therein  mentioned,  to  wit,  the  day 
and  year  aforesaid,  and  then  and  there  directed  the  said  order 
in  writing  or  bank  check  to  the  said  defendant  by  the  name, 
style  and  description  of  C  D,  and  thereby  then  and  there  re- 
quested and  required  of  the  said  defendant  to  pay  to  the  order 

of  i\I  R  the  sum  of dollars  ($ )  ;  and  then 

and  there  delivered  the  said  order  in  writing  or  bank  check 
to  the  said  M  R. 

And  the  said  M  R,  to  whom  or  to  whose  order  Lhe  payment 
of  said  sum  of  money  in  the  said  bank  check  specified  was  to 
be  made  as  aforesaid,  afterwards  and  before  the  payment  of 
said  sum  of  money  mentioned  in  said  bank  check  or  any  part 


366  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

thereof,  to  wit,  on  the  day  and  year  last  aforesaid,  and  at  the 
place  aforesaid,  endorsed  the  said  order  in  writing  or  bank 
check,  and  by  such  endorsement  ordered  and  appointed  the  said 
sum  of  money  in  the  said  bank  check  specified  to  be  paid  to  the 
plaintiff  or  order,  and  then  and  there  delivered  the  said  order 
in  writing  or  bank  check  so  endorsed  as  aforesaid  to  the  said 
plaintiff ;  of  which  said  endorsement  so  made  thereon  as  afore- 
said, the  said  defendant  afterwards,  to  wit,  on  the  same  day 
and  year,  and  at  the  place  aforesaid,  had  notice. 

By  reason  whereof,  and  by  force  of  the  statute  in  such  cases 
made  and  provided,  the  said  defendant  became  liable  to  pa}''  to 
the  said  plaintiff  the  said  sum  of  money  in  the  said  bank  check 
specified,  according  to  the  tenor  and  effect  thereof,  and  of  the 
said  endorsement  so  made  thereon  as  aforesaid  in  case  the  said 
defendant  at  the  time  of  the  presentation  for  payment  of  said 
bank  check  had  on  deposit  or  in  its  possession  subject  to  the 
order  of  said  C  K  sufficient  money  or  funds  and  property  to  pay 
the  whole  amount  of  said  bank  check  according  to  the  tenor 
and  effect  of  said  bank  check  and  the  endorsement  thereon. 

And  the  said  plaintiff  avers  that  after  the  making  of  said 
order  in  writing  or  bank  check,  and  before  the  payment  of  the 
said  sum  of  money  therein  specified,  to  wit,  on  the  day  and 
hour  aforesaid,  the  said  order  in  writing  or  bank  check  was  pre- 
sented and  shown  to  the  said  defendant  for  payment  thereof 
according  to  the  said  usage  and  practice,  and  the  said  defend- 
ant was  then  and  there  requested  to  pay  the  said  sum  of  money 
therein  specified  according  to  the  tenor  and  effect  thereof,  and 
the  said  endorsements  thereon;  the  said  defendant  then  and 
there  having  on  deposit  or  in  its  possession  subject  to  the  order 
of  said  C  K  sufficient  money  or  funds  and  property  to  pay  the 
whole  amount  of  said  bank  check,  according  to  the  tenor  and 
effect  thereof,  and  of  said  endorsements  thereon ;  but  the  said 
defendant  did  not,  nor  Avould,  at  the  time  when  the  said  order 
in  writing  or  bank  check  was  so  shown  and  presented  to  it  for 
payment  thereof  as  aforesaid,  or  at  any  time  afterwards,  pay 
the  said  sum  of  money  therein  specified,  or  any  part  thereof, 
and  then  and  there  wholly  neglected  and  refused  so  to  do; 
whereof  the  said  defendant  afterwards,  to  wit,  on  the  day  and 

year  aforesaid,  at   ,  in  the  said 

county,  had  notice. 

By  means  whereof  the  said  defendant  then  and  there  became 
liable  to  pay  to  the  said  plaintiff  the  said  sum  of  money  in  the 
said  bank  check  specified,  when  the  said  defendant  should  be 
thereunto  afterwards  requested,  and  being  so  liable  the  said 
defendant  in  consideration  thereof,  to  wit,  on  the  day  and  year 

aforesaid,  at  the  county  of aforesaid,  undertook 

and  then  and  there  faithfully  promised  to  the  said  plaintiff  to 
pay  it  the  said  sum  of  money  in  the  said  bank  check  specified, 


ASSUMPSIT  367 

when  it,  said  defendant,  should  be  thereunto  afterwards  re- 
quested.   Nevertheless,  etc. 

974  Checks;  indorsee  v.  maker,  Narr.  (111.) 

For  that  whereas,  the  defendant . . ,  on  the day  of 

, ,  in  the  county  aforesaid,  made  .  .  h .  .  order 

in  writing,  commonly  called  a  check,  on  C,  bankers,  and  di- 
rected the  same  to  said  C,  bankers,  and  required  the  said  C, 

bankers,  to  pay  to  the  order  of  D,  the  sum  of   

dollars,  and  then  and  there  delivered  the  said  order  or  check 
to  said  D ;  and  the  said  D,  to  whose  order  the  payment  of  the 
said  sum  of  money  in  the  said  order  or  check  specified  was  to 
be  made  as  aforesaid,  afterwards,  and  before  the  payment  of 
the  said  money  mentioned  in  the  said  order,  or  any  part  thereof, 
to  wit,  on  the  same  day  and  year  and  at  the  place  aforesaid, 

indorsed  the  said  order  or  check  in  writing,  by 

, cashier,  and  then  and  there  de- 
livered the  said  order  to  the  plaintiff.  .  ;  and  the  plaintiff. . 
aver. .  that  on  the  day  aforesaid  the  said  order  was  there  pre- 
sented to  the  said  C,  bankers,  for  payment  thereof,  and  they 
were  then  and  there  requested  to  pay  the  said  sum  of  money, 
according  to  the  tenor  and  effect  of  the  said  order;  but  that 
the  said  C,  bankers,  did  not,  nor  would  then  nor  at  any  other 
time,  pay  the  said  sum  of  money  or  any  part  thereof,  but  re- 
fused so  to  do;  whereof  the  defendant.,  then  and  there  had 
notice.  By  means  whereof  the  defendant . .  then  and  there  be- 
came liable  to  pay  to  the  plaintiff.  .,  on  request,  the  said  sum 

of dollars ;  and    being  so  liable,  the  defendant .  . , 

in  consideration  thereof,  then  and  there  promised  the  plain- 
tiff. .  to  pay  it  the  said  sum  of  money.     (Add  common  counts) 

975  Commission;  insurance  adjuster,  Narr.  (Miss.) 

The    ,  the  defendant,  is  a  corporation 

duly  and  legally  organized  and  doing  business  at  the 

,  Mississippi,  in  the  district  of 

county,  and  that  said  defendant was    before 

and  on  the day  of 19 . . ,  engaged  in 

the  manufacture  of  cotton  seed  oil  and  other  by-products  from 

cotton  seed,  and  for  that  purpose  had  established  in 

,  Mississippi,  a  plant  commonly  known  as  a  cotton 

seed  oil  mill,  and  had  in  the  warehouse  of  said  plant  accumu- 
lated a  large  stock  of  cotton  seed  which  was  on  hand  on  the 

day  of 19 . . ,  and  had  procured  and 

did  have  on  said  date  a  large  amount  of  fire  insurance  in  sundry 

and  various  companies  amounting  in  the  aggregate  to   

......  dollars  on  the  plant  and  about dollars  on 

the  products  stored  therein;  and  on  said  date  a  fire  broke  out 
in  said  warehouse  and  destroyed  the  same  and  the  products 


368  ANNOTATED  FORMS  OF   PLEADING   AND  PRACTICE 

therein,  inflicting  a  loss  upon  said  defendant  on  which  the 
insurance  companies  were  obliged  to  pay  for  on  the  phint  the 

sum  of dollars  and  on  the  products  stored  therein 

dollars. 

Said  losses  were  distributed  as  stated  among  a  large  number 
of  fire  insurance  companies,  some  of  which  were  authorized  to 
do  business  in  the  state  of  iMississippi  and  many  of  which  were 
not  authorized  to  do  business  in  the  state  of  Mississippi ;  and  as 
to  the  companies  which  were  not  authorized  to  do  business  in 
this  state  it  was  impossible  for  said  companies,  without  a  viola- 
tion of  the  criminal  laws  of  the  state,  to  have  the  loss  ascer- 
tained and  adjusted,  either  by  their  special  agents,  or  inde- 
pendent adjustei-s  for  that  purpose;  and  it  was  impossible 
and  impractical  for  the  defendant  to  collect  its  loss  without 
making  such  proof. 

Plaintiff  is  an  authorized  insurance  adjuster  in  the  state  of 
Mississippi  and  was  employed  by  the  said  insurance  companies 
W'ho  were  authorized  to  do  business  in  this  state,  and  w^ho  sus- 
tained losses  on  said  plants  and  products,  to  adjust  said  loss 
for  them,  which  plaintiff  did. 

Subsequent  to  this  action  on  the  part  of  plaintiff  for  said 
authorized  companies,  the  defendant,  realizing  that  it  must 
have  proofs  of  loss  showing  in  detail  the  losses  sustained  by  it 
in  said  fires  by  which  the  said  companies  that  were  not  author- 
ized to  do  business  in  this  state,  negotiated  with  plaintiff  and 
procured  his  services  to  make  for  it  proofs  of  loss  against  said 
non-authorized  companies,  and  with  that  end  in  view  the  de- 
fendant forwarded  to  plaintiff  a  telegram  as  follows  :  (Set  forth 
telegram)  by  which  telegram  the  said  defendant  employed 
plaintiff,  who  was  a  regularly  authorized  insurance  adjuster 
in  the  state  of  Mississippi,  to  do  said  work  for  it  and  became 
liable  and  bound  to  pay  a  reasonable  compensation  for  said 
services ;  whereupon  in  obedience  to  said  request,  plaintiff  made 

up  the  proofs  of  loss  for  said    against  the  said 

companies  that  were  not  authorized  to  do  business  in  the  state 

of  Mississippi  and   forwarded  the  same  to  the    , 

which  proofs  of  loss  were  comprehensive  and  in  every  partic- 
ular sufficient  for  the  purpose  for  which  they  were  made,  and 
by  reason  of  Avhich  the  ,  the  defendant,  was  en- 
abled to  procure  and  did  procure  with  the  said  insurance  com- 
panies a  settlement  and  adjustment  of  the  losses  on  the  figures 
thus  furnished  by  plaintiff  at  defendant's  request. 

By  reason  of  which  request  and  the  services  rendered  the  de- 
fendant became  liable  to  plaintiff  and  then  and  there  promised 
to  pay  plaintiff  a  reasonable  compensation  and  the  usual 
charges  for  said  services.  The  defendant  knew  that  plaintiff 
was  an  insurance  adjuster  and  that  they  would  have  to  pay  for 
his  services  what  they  were  reasonably  worth  and  what  it  was 
customary  to  charge  when  they  made  said  request  and  accepted 


ASSUMPSIT  369 

said  services,  and  defendant  thereby  became  bound  to  pay  the 
plaintiff  a  reasonable  price  for  said  services ;  and  the  customary 
charge  which  the  defendant  promised  to  pay  Avas  the  sum  of 
dollars,  being  ....  per  cent  of  the  amount  in- 
volved as  shown  by  the  itemized  bill  of  particulars  filed  with 
this  declaration  and  marked  exhibit  "A,"  which  bill  of  par- 
ticulars, exhibit  "A,"  is  asked  to  be  taken,  considered  and 
made  a  part  of  this  declaration  the  same  as  if  copied  herein  in 
words  and  figures.  Plaintiff  avers  and  charges  that  the  said 
sum  of dollars  as  shown  by  said  bill  of  particu- 
lars is  a  reasona])le,  usual,  just  and  customary  charge  for  said 
services,  and  is  the  lowest  per  cent  charged  for  similar  services 
by  adjusters  of  insurance. 

Plaintiff*  avers  and  charges  that  said  bill  for  said  services  was 

rendered  to  the  defendant  for  the  said  sum  of    

dollars,  as  sho^s•n  in  said  itemized  bill  of  particulars  after  said 
services  had  been  rendered  and  the  adjustment  with  said  com- 
panies had  been  made  when  said  sum  was  due  and  payable  to 
plaintiff;  and  although  said  sum  is  long  since  past  due,  and 
the  defendant  has  iK^en  often  requested  to  pay  the  same,  it  has 
wholly  failed  and  refused  to  paj-  said  sum,  or  any  part  thereof, 
and  still  refuses  to  pay  the  same,  to  the  damage,  etc. 

976  Commission;  real  estate  broker,  loan,  Narr.  (111.) 

For  that  whereas  the  defendants,  heretofore,  to  wit,  on  the 

day  of 19 .  . ,  in  the  county 

aforesaid,  engaged  the  said  plaintiffs  to  act  for  them  and  on 
their  behalf  to  procure  for  them  a  loan  of .dol- 
lars, to  be  secured  by  trust  deed  on  certain  real  estate  situated 
in  county,  Illinois,  and  agreed  to  pay  the  plain- 
tiff's a  commission  of  ....  per  cent  on  said  amount  of 

dollars  for  their  services  as  brokers  in  negotiating  said 

loans,  which  agreement  was  in  writing  and  is  in  the  words  and 
figures  following,  to  Vv'it :  (Insert  application  for  loan).  And 
the  said  plaintiffs  aver  that  in  pursuance  of  said  agreement 
they  at  once  entered  upon  the  negotiation  of  said  loan  and  pro- 
cured the  same  from  one  of  their  customers,  one 

,  for  the  amount  and  upon  the  terms  therein  stated;  that 

thereupon  the  said  defendants  became  and  were  indebted  to  the 
said  plaintiff's  for  their  services  in  negotiating  said  loan,  in 
the  sum  of dollars,  under  the  terms  of  said  agree- 
ment ;  and  being  so  indebted,  the  said  defendants,  in  considera- 
tion thereof,  then  and  there  promised  the  said    

and  to  pay  them  said  sum  of  money  on  request. 

Yet,  etc. 

977  Commission;  real  estate  broker,  sale,  authority 

Ordinarily,  an  agent  must  personally  perform  his  services, 
unless  he  is  expressly  permitted  to  delegate  his  authority  to 


370  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

others.  An  authority  to  employ  a  sub-agent  cannot  be  implied 
in  the  absence  of  evidence  of  a  fixed  and  established  custom 
of  the  particular  trade  or  business  in  the  place  where  the 
agency  is  to  be  exercised  for  the  agent  to  employ  sub-agents, 
and  such  employment  is  necessary,  proper  and  usual  to  the 
effective  exercise  of  the  authority  conferred.-"  An  authority 
to  fix  the  price  of  anything  does  not  confer  the  right  to  employ 
a  sub-agent.-^ 

978  Commission;  real  estate  broker,  sale,  Narr.  (Fla.) 

Plaintiff  sues  defendant  because  prior  to  the  institution  ot 

this  suit,  to  wit,  on  the day  of 

19, .,  the  defendant  employed  the  plaintiff,  who  is  a  real  estate 
and  timber  land  broker,  to  procure  a  purchaser  for  the  pine 

timber  lands  owned  by  the  defendant,  lying  in 

county,  in  the  state  of  Florida,  represented  by  the  said 

defendant  to  be  about acres,  together  with  mills,  plants 

and  railroads  located  thereon. 

That  the  plaintiff  in  pursuance  of  his  employment  as  such 

broker  did  procure  and  introduce    

to  the  said  defendant,  and  that  the  said  defendant  subsequently 
sold  all  of  said  lands  to  the  said 

And  the  plaintiff  avers  that  the  sale  to  the  said 

was  made  through  the  efforts  of  the  plaintiff  in 

interesting  the  said  in  said  prop- 
erty, that  the  plaintiff's  acts  in  this  connection  were  the  pro- 
curing cause  of  the  sale  of  the  said  property  for  the  sum  of 

dollars ;  and  the  plaintiff  avers  that  by  reason  of 

the  premises  the  plaintiff  became  entitled  to  receive  from  the 

defendant  a  commission  of per  cent  of  said  amount. 

Wherefore,  etc. 

(Illinois) 

For  that  whereas,  on,  to  wit,  the day  of 

19 . . ,  the  defendant  w^as  the  owner  of  the  follow- 
ing described  premises,  to  wit:  (Insert  legal  description),  to- 
gether with  the  improvements  thereon,  situated  in  the  city  of 

,  county  and  state  aforesaid,  and  being  such 

owner,  did,  on,  to  wit,  the  day  aforesaid,  at,  to  wit,  the  county 
aforesaid,   employ  the   plaintiff  to  find  a  purchaser  for  said 

premises,  within days  from  the  day  aforesaid,  at 

the  price  of,  to  wit,    dollars ;   and  the  plaintiff 

avers  that  said  defendant  then  and  there  undertook  and  prom- 
ised to  pay  to  the  plaintiff  in  consideration  of  the  procuring  by 
the  plaintiff  of  a  purchaser  for  said  premises,  at  said  price,  and 
within  said  time,  the  sum  of   dollars.     And  the 

27  Dogget  V.  Greene,  254  111.  134,  28  Dogget  v.  Greene,  254  ni.  138. 

140   (1912). 


ASSUMPSIT  371 

plaintiff  avers  that  he,  thereafter,  and  within  said  period  of 

days,  found  and  procured  a  purchaser  for  said 

premises  at  and  for  the  price  aforesaid,  and  to  which  said  pur- 
chaser so  procured  by  the  plaintiff  the  defendant  sold  premises 
at  and  for  the  price  aforesaid.  By  means  whereof  the  said  de- 
fendant became  liable  to  pay  to  the  plaintiff  the  said  sum  of 
dollars,  aforesaid.    Nevertheless,  etc. 


For  that  whereas,  heretofore,  to  wit,  on  the    

day  of 19 . .,  the  plaintiff  was,  and  ever 

since  has  been,  a  real  estate  broker  carrying  on  his  business 

in  the  city  of ,  county  of and  state 

of  Illinois;  and  the  said  defendants,  on  the  date  last  mentioned, 
claimed  to  be  the  owners  in  fee  simple  of  the  premises  on  the 
(Give  general  location)  in  the  city  and  county  aforesaid,  and 

the  building  thereon,  known  as  the  building,  and 

requested  the  said  plaintiff  to  procure  for  them  a  purchaser  for 

said  premises  at  the  price  of   dollars,  and  then 

and  there  promised  to  pay  the  plaintiff  *  so  much  money  as  he 
reasonably  deserved  to  have  for  his  services  in  procuring  such 
a  purchaser,  and  the  plaintiff  avers  that  he  then  and  there 

reasonably  deserved  to  have  therefor  the  sum  of 

dollars  upon  the  rendition  of  said  services ;  whereof  the  said 
defendants  then  and  there  had  notice.*  (Or,  in  place  of  the  mat- 
ter between  stars,  aver:  "at  the  rate  of  commission  which  it 
was  then  and  there  the  custom  to  pay  real  estate  brokers  in 

said  city  of, for  services  in  procuring  a  purchaser 

of  real  estate ;  which  rate  plaintiff  avers  was per  cent 

on  the  price  at  which  such  property  was  sold  or  bargained  to 
be  sold;  and  which  custom  and  rate  were  well  known  to  the 
said  defendants.") 

And  the  plaintiff  further  avers  that  thereafter,  on  the  date 
last  aforesaid,  the  plaintiff  did  procure  a  purchaser,  ready, 
willing  and  able  to  buy  said  premises,  at  the  price  so  fixed,  as 
aforesaid,  and  the  said  defendants  thereupon  entered  into  a 
contract  with  the  said  purchaser  whereby  the  said  defendants 
agreed  with  the  said  purchaser  to  sell  to  him,  and  the  said 
purchaser  agreed  to  buy  of  the  said  defendants,  the  premises 
above  described  for  the  sum  of dollars. 

By  means  whereof  the  said  defendants  became  and  were  in- 
debted to  the  said  plaintiff  in  the  sum  of dollars, 

for  procuring  such  a  purchaser  as  above  set  forth;  and  being 
so  indebted,  the  said  defendants  in  consideration  thereof  then 
and  there  promised  the  said  plaintiff  to  pay  him  the  said  sum 
of  money  on  request.     Yet,  etc. 


For  that  whereas  heretofore,  to  wit,   on  the    . . 
day  of 19 . . ,  at  the  said  county  of 


372  ANNOTATED   FORMS  OP   PLEADING    AND   PRACTICE 

,  the  said  defendant  by  the  name  and  style  of 

made  and  delivered  to  the  plaintiff  a  certain  agree- 
ment in  writing  in  the  words  and  figures  following,  to  wit : 
19.. 


Dear  Sir — I  hereby  agree  to  lease  my  bldg.  at 

,  known  as  the    ,   at 

$ per  month  for  first  year,  or  the  privilege  here- 
after of  buying  if  they  choose  at  $ ,  or  if  buildings 

should  not  be  suitable  will  donate square  ft.,  along 

the   for  company  to  build  on.     AVill  allow 

you  as  commission  for  said  location  one-third  interest  in 

acres  located  near  said  works.  (Signature) 

And  the  plaintiff  avers  that  by  the  word  "bldg."  in  the 
said  agreement  was  meant  a  certain  building  and  premises  of 
the  said  defendant  in  said  county,  to  wit,  the  building  and 

premises  known  as  the  at  

,  in  said  county;  and  that  by  the  word  "company"  in 

said  agreement  was  meant  a  certain  manufacturing  firm  or  cor- 
poration known  as  the ,  then  and  there 

composed  of  certain  persons,  to  wit, 

and ,  said  last  named  company  was  then 

engaged  or  was  about  to  engage  in  the  business 

of  the  manufacture  and  sale  of in  said 

county. 

And  the  plaintiff  further  avers  that  under  and  in  pursuance 
of  said  contract,  the  plaintiff  afterwards,  to  wit,  on  the  day  and 
year  last  mentioned,  to  wit,  at  said  county,  brought  and  intro- 
duced to  the  defendant  the  said  persons  composing  the 

,  to  wit,  said  and  said 

;  and  through  the  said  efforts  and  intro- 
duction  of  the   said  plaintiff   the   said    

did  enter  into,  take  and  accept  a  lease  and  demise  from  the 

plaintiff  to  them,  said and 

,  of  the  said  building  and  premises,  for  a  certain 

term,  to  wit,  for  the  term  of years  at  a  certain  agreed 

rental,  to  wit,  a  rental  of  dollars  per  year,  and 

did  under  the  said  lease  and  demise  enter  into  occupation  of 

said  building  premises  and  did  locate  said 

in  and  upon  said  building  and  premises ;  and  that  said 

thereupon,  to  wit,  then  and  there  engaged  in  and 

carried  on,  and  has  since  that  time  thence  hitherto  carried  on 
and  is  still  carrying  on,  on  said  premises,  the  said  business  of 
the  manufacture  and  sale  of ;  and  the  said  plain- 
tiff avers  that  said  defendant  accepted  said  location  of  said 

on  said  premises  as  and  for  the  location 

in  said  contract  mentioned. 

Yet,  the  plaintiff  avers  that  the  defendant  did  not  nor  would 

allow  the  plaintiff  one-third  interest  in acres  located 

near  said  works,  but  wholly  neglected  and  refused  and  still 


ASSUMPSIT  373 

neglects  and  refuses  so  to  do,  to  wit,  at  said  county,  to  the 

damage  of  the  plaintiff  of   dollars.     By  reason 

Avhereof  the  defendant  became  liable  to  pay  to  the  plaintiff  his 

said  damage,  to  wit,  said  sum  of   dollars,  and 

being  liable,  the  defendant  afterwards,  to  wit,  on  the   

day  of 19 . . ,  to  wit,  at  said  county, 

undertook  and  promised  to  pay  the  plaintiff  said  sum  of  money 
last  mentioned  when  thereunto  requested.  But  although  there 
afterwards  often  requested,  to  wit,  at  said  county,  the  defend- 
ant hath  neglected  and  refused  and  still  neglects  and  refuses 
to  pay  the  plaintiff  said  sum  of  money,  or  any  part  thereof, 
to  the  damage  of  the  plaintiff  of dollars ;  where- 
fore he  brings  suit,  etc. 

(Michigan) 

For  that  whereas,  the  said  defendant,  heretofore,  to  wit,  on 

or  about  the day  of 19 .  . , 

was  indebted  to  the  said  plaintiff'  in  the  sum  of 

dollars,  for  services  rendered  pursuant  to  a  special  agreement, 
entered  into  orally  by  and  between  the  said  defendant  and  the 

said    ,    deceased,    in   relation    to    the 

sale  and  transfer  of  a  certain  piece  of  real  estate  on  the 

corner  of avenue  and street, 

in  the  city  of   ,    county,  Michigan, 

of  which  said  defendant  had  charge  and  control.  And  the 
plaintiff  avers  that  the  said  ,  de- 
ceased, at  ihe  reciuest  of  the  said  defendant,  had  agreed  to 
use  his  efforts  in  bringing  about  a  sale  of  said  real  estate,  and 
in  finding  a  purchaser  for  the  same,  and  the  said  defendant 
had  agreed  in  consideration  of  the  premises,  that  he  would  pay 

the  said   ,  deceased,    per 

cent  commission  on  the  purchase  price  of  said  real  estate,  which 

after  some  negotiations  had  been  fixed  at  the  sum  of   

dollars,  and  the  said  ,  de- 
ceased, had  found  a  purchaser  in  one , 

who  was  willing  to  buy  said  property  at  said  price,  if  he  could 
make  suitable  arrangements  for  the  purchase  price  thereof. 

And  the  plaintiff  avers  that  the  said , 

deceased,  had  entered  upon  negotiations  with  the  said 

,  under  said  contract,  and  at  a  certain  stage  of  said  ne- 
gotiations, and  before  the  said   had  effected 

a  sale,   a  new  agreement  was  made  orally   between   the   said 

and  the  said  defendant,  by  which  the  said 

defendant  undertook  and  promised  to  pay  to  the  said 

his  commission  at  all  events,  in  case  any  sales  should 

thereafter  be  effected  to  the  said   of  the  said 

property,  either  through  the  intervention  of  the  said   

,  or  any  other  person. 

And  the  plaintiff  avers  that  the  said   ,  de- 


374  ANNOTATED    FORMS   OF   PLEADING   AND   PRACTICE 

ceased,  continued  his  efforts  in  that  behalf,  and  that  tlie  said 

became  the  ultimate  purchaser  of  the  said 

property,  and  that  the  said  defendant  recognized  the  fact  that 

the  said had  done  a  certain  amount  of  labor 

in  finding  a  purchaser  and  bringing  about  a  sale  of  said  prop- 
erty, and  thereupon  agreed  to  pay  the  said  

the  said  commission  of   dollars,  in  pursuance  of 

said  modified  agreement. 

And  the  plaintiff  avers  that  in  consideration  of  the  premises, 
the  defendant  then  and  tliere  undertook  and  faithfully  prom- 
ised to  pay  the  said ,  this  plaintiff's  intestate, 

the  said  sum  of  dollars,  to  wit,  on  or  about  the 

said day  of , 

An  the  said  agreement,  in  its  modified  form,  being  so  made 

as  aforesaid,  afterwards,  to  wit,  on  or  about  the  said   

day  of , ,  at  the  city  of 

,  in  consideration  thereof,  the  said  defendant  then  and 

there  promised  to  pay  the -said  plaintiff's  intestate,  the  said 
sum  of  money  when  requested.  Yet  the  said  plaintiff  says  that 
the  said  defendant  contriving  and  wrongfully  and  unjustly  in- 
tending to  injure  the  said  plaintiff's  said  intestate,  did  not  nor 
would  perform  said  agreement,  promise  and  undertaking,  and 
thereby  craftily  and  subtly  deceived  the  said  plaintiff's  intes- 
tate, in  this,  that  the  said  defendant  neglected  and  omitted  to 
pay  said  sum  of  money,  and  the  interest  thereon,  and  as  plain- 
tiff's said  intestate  was  entitled  to  receive  by  virtue  of  said 
agreement  and  the  modification  thereof,  constituting  said  spe- 
cial agreement  and  undertaking,  according  to  the  tenor  and 
effect,  true  intent  and  meaning  thereof,  that  is  to  say,  refused 
to  pay  said  intestate  the  said  sum  of  money  and  the  interest 
thereon,  in  compliance  with  his  said  special  agreement  and  un- 
dertaking, so  made  by  the  said  defendant,  as  the  agreed  com- 
pensation to  the  said  intestate,  for  his  said  services  rendered  in 
pursuance  of  the  said  agreement  and  undertaking,  so  modified 
as  hereinbefore  set  forth. 

And  the  plaintiff  avers  that  on  the    day   of 

19 ... ,  the  said departed  this 

life  at  the  city  of  aforesaid,  and  thereafter 

such  proceedings  were  had  in  the  probate  court  for  said  county 

of ,  and  on  the day  of , 

19.  . ., was  duly  appointed  and  duly 

qualified  as  general  administrator  of  the  estate  of  said  deceased, 

and  on  the day  of ,  19  •  • ,  the 

said    resigned  the  trust  imposed  upon  him 

by  said  court,  and  on  said day  of , 

19..,  the  said  probate  court  accepted  said  resignation;  and 

thereupon  on  the day  of , 

19 . . .  the  said   was  appointed  administrator 

de  lonis  non,  and  has  duly  qualified,  and  is  now  executing  the 


ASSUMPSIT  375 

trust  imposed  by  said  office,  and  he  brings  into  court  here  the 
letters  of  said  probate  court,  which  give  sufficient  evidence  of 
his  authority  to  act  in  that  behalf.  To  the  damage  of  the 
plaintiff  in  all  in  the  sum  of dollars,  and  there- 
fore he  brings  suit,  etc, 

(Mississippi) 

That  the  plaintiffs  are  engaged  in  the  real  estate  business  in 
,  county,  Mississippi ;  that  they  ne- 
gotiate sales  of  property  for  other  persons,  representing  either 

the   seller   or   buyer ;   that   the   defendant,    , 

on  the day  of ,  19  •  • ,  was 

owner  of  a  certain residence,  situated  in  the  city 

of    ,    street,    county, 

Mississippi,  and  being  desirous  of  selling  the  same,  contracted 
with  the  plaintiff's  to  procure  for  him  a  purchaser  for  said  resi- 
dence; that  the  said  defendant  contracted  and  agreed  to  pay 
the  plaintiffs  per  cent  of  whatever  amount  said  prop- 
erty should  be  sold  for,  which  price  should  be  satisfactory  to  the 
defendant. 

That  after  accepting  said  employment  the  plaintiffs  used 
all  due  diligence  to  find  a  purchaser  for  the  defendant;  that 
they  listed  said  property  on  their  books  and  spent  much  time, 
labor  and  money  in  an  effort  to  find  a  purchaser  for  said  prop- 
erty. That  the  plaintiffs  had  amongst  their  customers  and  cor- 
respondents, one  ,  who  desired  to  buy  a  resi- 
dence in   of ,  and  the  plaintiff  with 

the  consent  of  the  defendant  took and 

and  showed  them  this  property  with  the  view  of 

making  a  sale  of  the  same ;  that  said  plaintiffs  spent  much  time 
and  labor  in  an  effort  to  make  said  sale ;  that  the  said  defendant 

did  not  know  the  said and  did  not  know  that 

he  was  a  prospective  purchaser  of  said  house,   and  the  said 

did  not  know  of  the  said  defendant's  house, 

but  that  the  trade  hereinafter  set  out  and  made  was  the  re- 
sult of  plaintiffs'  effort;  that  after  the  said  residence  had  been 
shown  to and by  the  plain- 
tiffs and  as  a  result  of  the  plaintiffs'  labor  and  efforts  in  finding 
said  customer  and  showing  said  property  and  introducing  the 

said  defendant,  upon  the   day  of , 

19..,  said  trade  was  consummated,  the  said  defendant  taking 

cash  and  other  property,  amounting  in  all  to dollars, 

the  said  defendant  having  duly  deeded  to said 

residence,  which  deed  is  now  on  file  in  the  chancery  clerk's  of- 
fice in ,  Mississippi. 

Plaintiffs  allege  and  aver  that  it  was  solely  and  only  through 

the   efforts  of   the   plaintiffs  that   the  said    

and  the  defendant  were  introduced  one  to  the  other,  and,  as  a 
result  thereof  said  sale  was  made.    Wherefore,  the  said  defend- 


376  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

ant  became  and  v:as  and  is  now  indebted  to  the  plaintiffs  in  the 

sum  of dollars,  which  the  defendant  refuses  and 

fails  to  pay,  either  in  whole  or  in  part,  although  payment  has 
often  been  demanded  of  him. 

979  Commission;  stock  broker  defined 

A  broker  is  one  who  purchases  and  sells  for  others  stocks, 
bonds  or  other  securities  on  commission,  and  who  has  the  power, 
in  his  own  name  or  that  of  his  principal,  to  receive,  hold  or 
transfer  the  securities  which  are  the  subject  matter  of  the  con- 
tract, and  to  pay  or  receive  payment  for  the  securities  bought 
or  sold,  unless  this  power  is  limited  by  statute  or  ordinance.-^ 
A  person  who  deals  with  property  which  is  not  in  his  custody, 
is  not  a  broker  within  the  meaning  of  an  ordinance  of  Chicago. 
Certificates  of  stocks,  bonds  and  other  securities  are  considered 
as  property  under  that  ordinance."^ 

980  Contracts,  law  governing 

The  construction,  the  validity  and  the  obligation  of  a  eon- 
tract  is  determined  by  the  law  of  the  place  where  it  is  made,  or 
it  is  to  be  performed.  A  contract  is  in  law  regarded  as  made 
at  the  place  where  it  is  delivered.  A  void  contract  in  one  state 
may  be  made  valid  and  enforcible  by  the  laws  of  another 
state.^^  The  security  is  merely  an  incident  to  the  contract  and 
in  no  way  affects  its  validity.^^ 

981  Contracts,  generally 

In  an  action  upon  a  written  contract,  the  whole  agreement 
and  all  of  the  previous  conversations  relating  to  the  subject 
matter,  are  presumed  to  have  been  merged  in  a  written  eon- 
tract  and  form  the  basis  of  the  action.^^  An  action  of  assump- 
sit lies  upon  a  contract  express  or  implied. ^^  Immediately  upon 
the  repudiation  of  an  executory  contract  by  one  of  the 
parties,  the  other  may  bring  an  action  for  its  breach  without 

29Banta  v.  Chicago,  172  111.  204,  32  Walker  v.  Lovitt,  250  111.  549. 

213,   217    (1898);    Hately  v.   Kiser,  33  Grubb   v.   Milan,   249    111.    456, 

253  111.  288,  290    (1912).  463   (1911). 

30  Hately  V.  Kiser,  5«2Jra;  See.  194  34  Chicago  Terminal  Transfer  R. 
City  ordinances,   Chicago.  Co.   v.    Winslow,    216   III.    166,    171 

31  Walker  v.  Lovitt,  250  111.  543,  (1905). 
546,  549  (1911);  Sec.  8,  c.  74,  Eev. 

Stat.    (111.). 


ASSUMPSIT  377 

waiting  for   the  day  of  performance   of  the   contract   therein 
specified.^^ 

982  Contracts;  performance,  tender 

A  person  who  in  good  faith  and  not  as  a  mere  matter  of  spec- 
ulation, fails  to  wholly  perform  an  entire  express  contract  may 
sue  in  implied  assumpsit  the  person  who  receives  a  substantial 
benefit  from  the  part  performance  of  the  contract  for  its  reason- 
able value,  not  exceeding  the  contract  price,  less  the  damages, 
if  any,  resulting  from  the  non-performance  of  the  entire  con- 
tract, unless  a  performance  is  prevented  by  the  defendant's 
own  fault,  when  the  recovery  may  exceed  the  contract  price. 
This  cause  of  action  is  not  a  repudiation  or  a  rescission  of  the 
special  contract,  but  it  is  entirely  independent  thereof.  It 
arises  upon  equitable  grounds  from  the  benefit  received  from 
the  partial  performance  of  the  special  contract,  and  is  in  dero- 
gation of  the  common  law.  By  that  law,  whenever  there  was 
an  entire  express  contract,  none  could  be  implied.^^  A  contract 
which  calls  for  successive  acts,  first  by  one  party  and  then  by 
the  other,  is  not  breached  until  the  non-performance  of  the 
precedent  act.  A  contract  which  contemplates  concurrent  acts 
is  breached  when  one  of  the  parties  is  ready  and  willing  and 
offers  to  perform,  provided  the  other  will  concurrently  perform 
his  part,  the  tender  or  offer  to  perform  being  conditional ;  or 
when  there  is  a  refusal  to  perform  by  one  of  the  parties  and  the 
other  is  ready  and  willing  to  perform,  in  which  case  no  actual 
offer  or  tender  is  necessary  to  a  breach  of  the  contract.^*^ 

983  Contracts;  third  person's  benefit,  action 

A  person  for  whose  benefit  a  promise  is  made  may  maintain 
an  action  upon  it  provided  the  promise  is  based  upon  valuable 
consideration.^^ 

984  Contracts;  third  person's  benefit,  declaration,  requisites 
On  a  contract  made  for  the  benefit  of  a  third  person,  the  dec- 
laration  must  contain   an   averment  of  the   plaintiff's   special 
beneficial  interest  in  the  performance  of  the  contract.^^ 

35  Chicago   Title   &    Trust    Co.    v.  37  Osgood  v.  Skinner,  211  111.  229, 

Sagola    Lumber    Co.,    242    111.    468,  235   (1904). 
476    (1909).  ssMerriman   v.    Schmitt,    211   HI. 

•■56  Wilson  V.  Wagar,  26  Mich.  452,  263,  266    (1904). 
456,463  (1873) ;  Booske  V.  Gulf  Ice  39  Rodhouse    v.    Chicago    &    Alton 

Co.,  24  Fla.  550,  559    (1888).  Ey.  Co.,  219  111.  596,  602  (1906). 


378  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

985  De  facto  corporation,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the    

day  of ,  ID .  . ,  at  the  city  of , 

to  wit,  at  the  county  aforesaid,  and  at  divers  times  prior  thereto, 

beginning  with,  to  wit,  the day  of , 

19 . . . ,  at  the  city  of ,  to  wit,  at  the  county 

aforesaid,  said  defendants  pretending  to  be  directors  and  offi- 
cers of  a  pretended  stock  corporation  by  the  name  of 

,  did  assume  to  exercise  corporate  powers  and  to  use 

the  name  of  said  pretended  corporation  without  having  there- 
tofore complied  with  an  act  of  the  state  of  Illinois,  entitled, 
"An  act  oencerning  corporations"  (being  a  part  of  chapter  32 
of  the  Revised  Statutes  of  the  state  of  Illinois),  which  pre- 
scribe and  regulate  the  manner  and  means  in  and  by  which 
corporations  for  pecuniary  profit  may  be  lawfully  organized 
and  authorized  to  do  business,  that  is  to  say,  said  defendants 
did  not  file  or  cause  to  be  filed  and  there  had  not  been  filed 

prior  to  or  at  said  time,  to  wit,  the day  of 

,  19. .,  in  the  recorder's  office  of 

county,  in  which  county  was  the  principal  office  of  said  pre- 
tended corporation,  a  certificate  from  the  secretary  of  state  of 
Illinois  of  the  complete  organization  of  said  corporation,  and 
so  assuming  and  pretending,  as  aforesaid,  said  defendants  did 
purchase  from  said  plaintiff. .  on  the  alleged  behalf  of  said  pre- 
tended corporation,   divers  goods,   wares  and  merchandise,   of 

the  value  in  all  of  the  sum  of dollars  and 

cents,  which  said  goods,  wares  and  merchandise,  were 

by  the  said  plaintiff,  at  the  times  respectively  of  said  purchases, 
and  at  the  request  of  said  defendants,  delivered  to  them  as  and 
so  pretending  to  be  directors,  officers  and  agents  of  said  pre- 
tended corporation ;  *  by  means  of  which  said  defendants  be- 
came and  were  jointly  and  severally  liable  as  partners,  doing 
business  under  the  name  of ,  to  pay  the  plain- 
tiff said  purchase  price  or  value  of  said  goods,  wares  and  mer- 
chandise, so  as  aforesaid  purchased  by  them,*  (In  a  second 
count,  in  place  of  the  matter  between  stars,  aver:  "whereby 
and  by  force  of  the  statute  in  such  case  made  and  provided, 
said  defendants  became  and  were  jointly  and  severally  liable 
to  pay  to  the  plaintiff.  .  said  purchase  price  or  value  of  said 
goods,  wares  and  merchandise,  so  as  aforesaid  purchased  by 
them  in  the  name  of  such  pretended  corportion"),  and  being 
so  liable,  said  defendants  in  consideration  thereof,  then  and 
there,  to  wit,  on  the  day  and  year  aforesaid,  at  the  place  afore- 
said, promised  to  pay  to  the  said  plaintiff  said  last  mentioned 
sum  whenever  they  should  be  thereunto  afterwards  requested 
by  said  plaintiff.'**^    Nevertheless,  etc. 

40  Loverin  v.  McLaughlin,  161  HI. 
417  (1896). 


ASSUMPSIT  379 

986  Delinquent  tax,  drainage 

In  Michigan  the  county  drain  commissioners  may  maintain 
an  action  of  assumpsit  for  the  collection  of  delinquent  drain 
taxes.^i 

987  Draft,  forged  endorsement 

The  drawee  who  pays  a  draft  to  an  endorser  who  derives  title 
to  the  draft  through  a  prior  forged  endorsement,  may  recover 
back  the  money  so  paid  unless  the  forged  endorsement  was  ob- 
tained with  the  acquiescence  of  the  drawee,  on  the  principle 
that  when  one  of  two  innocent  parties  must  suffer  loss  from  the 
wrongful  acts  of  a  third  party,  the  party  who  has  made  it  pos- 
sible by  his  negligence  for  the  third  party  to  commit  the  wrong, 
must  stand  the  loss.-^^  A  draft  which  is  drawn  with  an  intent 
to  use,  and  actually  using,  a  fictitious  person  as  payee,  is  in 
legal  effect,  payable  to  bearer.  The  fictitious  payee's  endorse- 
ment is  not  a  forged  endorsement.*^ 

988  Draft,  indorsee  v.  acceptor,  Narr.  (Md.) 

(Precede    by    common    counts)       And    for    that    

and ,  co-partners  trading  as 

,   heretofore,   to   wit,  on   the    day  of 

•. , .  .,  in  the  year  19.  . .,  according  to  the  use  and  prac- 
tice of  merchants,  made  their '. .  certain  drafts  or  orders 

in  writing  for  the  payment  of  money,  each  bearing  date  the 

day  and  year  aforesaid  and  payable  respectively,    

months  after  date,  each  for  the  sum  of 

dollars  and  then  and  there  directed  the  said  drafts  or  orders 
to  the  defendant  and  thereby  then  and  there  requested  the  said 
defendant  to  pay  to  their  order, dollars,  and  de- 
livered the  said  drafts  or  orders  to  the  said  defendant  for  ac- 
ceptance; and  the  said  defendant  then  and  there  accepted  the 
same  in  writing;  and  after  the  making  of  said  drafts,  and  the 
said  acceptances  thereof,  and  before  the  payment  of  the  said 

sums  of  money  therein  specified,  the  said , 

co-partners  trading  as  aforesaid,  for  value  and  without  notice 
of  any  defect  therein,  before  maturity  transferred,  assigned 
and  delivered  the  said  drafts  to  the  plaintiff,  who  then  and 
there  became  and  was  from  thence  hitherto  hath  been  and  still 
is  the  lawful  endorsee  and  holder  in  due  course  thereof,  and 

41  (4367),  C.  L.   1897    (Mich.).  «  Bartlett  v.  First  National  Bank, 

42  Bartlett  v.  First  National  Bank,      247  111.  500. 
247  111.   490,   497,   498    (1910). 


380  ANNOTATED   FORMS   OF   TLEADING    AND    PRACTICE 

entitled  to  the  payment  of  the  said  sums  of  money  therein 
specified;  and  the  said  plaintiff  avers,  that  after  the  making 
of  the  said  drafts  and  after  the  said  transfer,  the  said  drafts 
were  each  presented  to  the  said  defendant  for  payment  thereof, 
and  the  said  defendant  was  then  and  there  requested  to  pay 
the  same  according  to  the  tenor  and  effect  thereof;  but  that 
the  said  defendant  did  not  pay  the  said  drafts,  or  either  of 
them,  or  any  part  thereof;  and  that  the  said  defendant  hath  not, 
at  any  time,  since  paid  the  amounts  specified  in  said  drafts,  or 
any  part  thereof. 

And  the  plaintiff  claims dollars. 

989  Drainage  benefits,  liability 

One  drainage  district  is  liable  to  auotlier  drainage  district  by 
way  of  contribution,  for  any  benefits  it  derives  from  the  con- 
struction or  enlargement  of  a  drainage  system.-*-* 

990  Drainage  benefits;  declaration,  requisites 

In  an  action  by  drainage  commissioners  for  the  recovery  of  a 
fair  amount  for  benefits  arising  from  drainage,  the  declaration 
must  aver  that  the  natural  water-course  or  channel  that  was 
improved  was  upon  the  lands  owned  by  defendants,  because  the 
statute  authorizes  the  bringing  of  such  action  only  against  land 
owners  whose  lands  are  intersected  by  the  channel  improved.*^ 

991  Employment ;  civil  service,  nev^r  charges 

The  right  of  a  civil  service  employee  to  continue  in  his  ac- 
tion for  unpaid  salary  is  not  suspended  by  bringing  new 
charges  aganst  him  under  the  Civil  Service  act  after  original 
charges  have  been  quashed  on  certiorari  and  there  has  been  no 
attempt  to  proceed  under  them.-*" 

992  Emplo3niient ;  constructive  service,  election  of  remedies 

An  employee  who  has  been  wrongfully  discharged  and  paid 
to  the  date  of  the  discharge,  may  treat  the  contract  of  employ- 
ment as  at  an  end  and  sue  at  once  for  its  breach,  in  which  case 
he  can  recover  only  the  damages  which  resulted  from  the  breach 
from  the  date  of  the  discharge  to  the  date  of  the  commencement 

44  Drainage  Commissioners  v.  46  Bullis  v.  Chicago,  235  111.  472, 
Union    Drainage    District,    211    111.       479   (1908). 

328,  332   (1904). 

45  Vermilion  Drainage  District  v. 
Shockey,  238  111.  237,  239  (1909). 


ASSUMPSIT  381 

of  the  suit.  Or,  he  may  consider  the  contract  of  employment  as 
continuing  and  sue  at  any  time  before  or  after  its  expiration; 
and  if  the  suit  is  commenced  before,  but  is  not  tried  until  the 
expiration  of  the  contract,  he  may  recover  the  contract  price, 
less  the  amount  that  he  has  earned  or  that  by  reasonable  dili- 
gence he  might  have  earned  in  other  employment.  A  recovery 
in  one  action  is  a  bar  to  all  future  actions  upon  the  contract  of 
employment  and  any  actions  that  might  have  grown  out  of  the 
relation  of  employer  and  employee  by  reason  of  the  wrongful 
discharge.  Contracts  of  employment  which  are  payable  in  in- 
stalments as  the  wages  fall  due  do  not  constitute  an  exception  to 
this  rule,  as  the  doctrine  of  constructive  service  or  employment 
is  not  recognized  in  Illinois.  An  action  upon  one  instalment  is 
a  bar  to  an  action  upon  a  subsequent  instalment  of  an  employ- 
ment contract.'*" 

A  contract  which  expressly  stipulates  for  a  fixed  period  of 
employment  is  regarded  as  indivisible  in  Maryland,  although 
the  wages  are  to  be  paid  in  weekly  or  monthly  instalments, 
giving  a  wrongfully  discharged  employee  who  has  been  paid  up 
to  the  time  of  discharge  but  a  single  remedy  for  the  recovery 
of  the  entire  damages  sustained  from  the  breach,  and  barring 
any  subsequent  action  in  case  of  a  recovery  therefor.'*^ 

In  Mississippi,  a  contract  of  employment  which  requires  the 
payment  of  compensation  in  instalments  is  considered  as  di- 
visible and  will  sustain  an  action  for  each  maturing  instalment, 
the  first  judgment  being  no  bar  to  a  subsequent  action  and 
judgment. ^'^ 

993  Employment;  cutter  and  fitter,  Narr.  (111.) 

For  that  whereas,  the  said  plaintiff,  heretofore  on,  to  wit, 

the day  of ,  19 . . ,  at  the  city 

of   aforesaid,  was  by  profession  and  occupation 

a  cutter,  fitter  and  designer  of  ladies'  cloaks  and  dresses,  and 
of  long  experience  in  the  said  profession  and  occupation,   to 

wit, years  of  such  experience,  during  which  time  .  .he 

had  conducted  and  carried  on  h..  said  profession  and  occupa- 
tion under  h.  .   professional  name  of ,  and 

M-as  capable  of  earning  and  did  earn  a  large  salary  in  the  exer- 
cise of  h .  .  said  profession  and  occupation,  to  wit,  a  salary  of 

<7  Doherty   v    Schipper   &   Block,  "  Williams  v.   Luckett,    77    Miss. 

250  111.  128,  132,  l.Si  (1911).  394,  397    (1899). 

isOlmstead  v.  Bach,  78  Md.  132, 
151    (1893). 


382  ANNOTATED   FORMS  OF   PLEADING   AND  PRACTICE 

dollars   ($ )   per  week,  under  contracts 

by  tiie  year;  all  of  which  was  then  and  there  well  known  to 
the  defendant. 

Plaintiff  further  says  that  on,  to  wit,  the  said 

^ay  of ,  19 . . ,  at  the  special  instance  and  re- 
quest of  the  said  defendant,  .  .he,  under  the  said  name  of 

J  entered  into  a  certain  contract  with  the  said  de- 
fendant in  the  line  of  h .  .  said  profession  and  occupation,  by 
the  terms  of  which  the  said  defendant  undertook  and  promised 
to  employ  the  said  plaintiff,  as  a  cutter,  fitter  and  desi^er  of 
ladies'  cloaks  and  dresses  at  the  store  of  the  said  defendant  in 

the  said  city  of  ,  for  one  year  from,  to  wit,  the 

day  of ,  19 . . ,  h . .  daily  hours 

of  service  to  commence  at,  to  wit,    o  'clock  a.  m.  as 

near  as  might  be,  and  to  end,  at,  to  wit,  the  hour  of 

o'clock  p.  m.,  as  near  as  might  be,  and  the  plaintiff  to  have 
one  week  of  vacation  during  the  said  year  and  all  the  regular 
holidays,  and  all  Saturday  half  holidays  during  the  season  in 
which  "it  is  customary  to  have  the  same,  and  to  go  to  New  York 
City  for  one  week,  each  trip,  in  the  spring  and  fall  on  the  busi- 
ness of  the  said  defendant  connected  with  h . .  said  line  of  em- 
ployment. 

And  the  plaintiff  further  says,  that  the  defendant  was  to 

pay  h.  .  therefore,  the  sum  of dollars  ($ ) 

each  and  every  week  during  the  continuance  of  the  said  contract 
through  said  years  and  was  to  pay  the  same  to  h .  .  weekly. 

And  the  plaintiff  further  avers  that  relying  upon  the  afore- 
said promises  and  undertakings  of  the  said  defendant,  and  in 
consideration  thereof,  .  .he  accepted  the  said  offer  and  agreed  to 
the  terms  thereof,  and  undertook  and  faithfully  promised  to 
carry  out  the  terms  and  conditions  of  the  said  contract,  and  at 
once  entered  upon  and  continued  the  execution  of  the  said 
agi-eement  and  faithfully  performed  each  and  every  of  the 
terms  thereof,  and  especially  performed  each  and  every  condi- 
tion precedent  to  be  done  and  performed  by  h. .,  the  said  plain- 
tiff, and  so  continued  to  execute  and  carry  out  the  conditions 
of  the  said  contract  until  the  defendant  refused  further  to  carry 
out  the  terms  and  conditions  thereof  by  h.  .  to  be  kept  and  per- 
formed and  refused  to  permit  the  plaintiff  to  execute  and  carry 
out  the  same  on  h .  .  part,  and  wrongfully  prevented  the  plain- 
tiff from  fulfilling  the  terms  and  conditions  thereof  to  be  kept 
and  performed  by  h.  .  . 

And  the  plaintiff  further  avers  that  .  .he  so  continued  in  the 

execution  of  the  said  contract  from,  to  wit,  the  said    

day  of ,  19  •  • ,  until,  to  wit,  the 

day  of ,  19 . . ,  and  the  de- 
fendant paid  h. .  therefor,  at  the  rate  of  dollars 

($ )  per  week,  from,  to  wit,  the  said day 

of    ,  19 .  . ,  up  to,  to  wit,  the  said    

(Jay  of ,  19 . . ,  when,  without  any  reasonable 


ASSUMPSIT  383 

cause  or  excuse,  the  said  defendant  wrongfully  discharged  the 
said  plaintiff,  and  without  any  reasonable  cause  or  excuse  re- 
fused to  further  carry  out  the  said  contract  of  employment  and 
so  informed  the  said  plaintiff,  and  the  said  plaintiff'  then  and 
there,  refused  to  permit  the  said  defendant  to  annul  and  cancel 
the  said  contract,  and  then  and  there  offered  the  said  defendant 
to  continue  in  the  faithful  execution  of  h .  .  said  contract  of 
employment  and  to  fully  complete  the  same,  but  the  said  de- 
fendant then  and  there  refused  to  permit  the  said  plaintiff  so 
to  do,  and  then  and  there,  and  from  thence  on  and  to  the  end 
of  the  said  year,  prevented  h.  .  from  executing  and  carrying 
out  the  said  contract  and  each  and  every  provision  thereof, 
and  then  and  there  and  from  such  time  on,  and  to  the  end  of 
the  said  year,  refused  to  pay  h . .  the  amount  due  to  h . .  from 
week  to  week  under  and  by  the  terms  of  the  said  contract  or 
any  part  thereof;  and  the  said  plaintiff,  ever  since  h.  .  said 
wrongful  discharge  by  the  said  defendant  has  at  all  times  been 
ready  and  willing  to  carry  out  and  perform  the  said  contract 
and  would  have  done  so  in  each  and  every  particular,  had  not 
the  said  defendant  wrongfully  prevented  h .  .  from  h . .  execut- 
ing and  carrying  out  the  said  contract  as  aforesaid. 

Plaintiff  further  avers  that,  from  the  time  of  h..  wrongful 
discharge  by  the  said  defendant  as  aforesaid,  and  h . .  wrongful 
refusal  to  execute  and  carry  out  the  said  contract  and  h.  . 
wrongful  refusal  to  permit  h.  ,  to  execute  and  carry  out  the 
same,  on  h. .  part,  .  .he  has  made  all  reasonable  effort  to  find 
employment  in  the  line  of  h.  .  said  profession  and  occupation 
and  has  utterly  failed  to  so  find  such  employment  without  fault 
on  h .  .  part ;  by  means  whereof  the  said  plaintiff  has  been  pre- 
vented by  the  said  defendant  from  fulfilling  and  carrying  out 
the  terms  of  the  said  contract,  and  has  been  prevented  by  h .  . 

from  earning  h. .  said  salary  of dollars  ($ ) 

per  week,  or  any  other  sum  since  the  said  breach  of  the  said 
contract  by  the  said  defendant  as  above  set  forth,  and  said  de- 
fendant has  utterly  failed  and  refused  to  pay  to  the  said  plain- 
tiff h..  said  salary  under  the  terms  of  the  said  contract,  and 
although  often  requested  has  not  paid  h..  the  said  salary  of 

dollars  ($ )  per  week,  according  to  the  terms 

of  the  said  contract,  since,  to  wit,  the  said day  of 

,  and  has  not  paid  to  h . .  the  money  due  to  h . .  under  and 

by  the  terms  of  the  said  contract  or  any  part  thereof,  to  the 

plaintiff 's     damage    in    the    sum    of     dollars 

($ ). 

994  Employment;  general  occupation,  Narr.  (Miss.) 

That  the  said ,  during  the  summer  of  . . . . , 

entered  into  a  contract  with  plaintiff, ,  by  the 

terms  of  which  contract  plaintiff  herein  bound  and  obligated 
h to  work  for  the  said  defendants  in  any  honorable  ca- 


384  ANNOTATED   FORMS   OF    PLEADING    AND   PRACTICE 

pacity  for  and  during  the  period  of months,  be- 
ginning witli and  ending  with ,  and 

by  the  terms  of  said  contract  the  said  defendants,    

,  bound  and  obligated  themselves  to  pay  to  plaiutitf 

herein,  the  sum  of dollars  for  each  and  every  one 

of  the  said   months  above  set  out. 

Plaintiff  states  that  pursuant  to  and  under  the  terms  of  said 
contract  plaintiff  went  into  discharge  of  h.  .  duties  as  an  em- 
ployee of  the  said   and  was  put  to  work  by 

them,  and  worked  for  the  said  defendants  during  the  months 
of  ,  for  each  of  which  months  the  de- 
fendants paid  plaintiff  the  sum  of    dollars  per 

month. 

Plaintiff   states   that    on    the   said   defendants 

herein  willfully  and  arbitrarily  and  without  any  reasonable  ex- 
cuse or  justilication  for  so  doing  discharged  plaintiff  and  re- 
fused to  further  comply  with  the  terms  of  said  contract,  and 
refused  to  allow  plaintiff  herein  to  continue  in  the  employment 
of  the  said  defendants  under  and  by  virtue  of  said  contract, 
and  refused  to  allow  plaintiff  herein  to  cai-ry  out  h.  .  contract 

witii  the  said  defendants  tluring  the   remaining    

niontiis  of  said  contract. 

Plaintiff  states  that  .  .  he  stood  ready  and  willing  and  did 
offer  in  good  faith  to  carry  out  h.  .  part  of  the  said  contract,  but 
that  the  said  defendants,  ,  willfully  and  ar- 
bitrarily and  without  reasonable  excuse  whatever  and  without 
any  justification  or  right  disciiarged  plaintiff  and  refu.sed  to 
pay  h.  .  for  h..  services  under  the  said  contract  during  the 
remaining    months  of  said  contract. 

Plaintiff'  further  states  that  .  .he  used  due  diligence  to  obtain 

other  and  suitable  employment  during  said    

and  was  unable  to  obtain  such  employment. 

Plaintiff  states  that  by  virtue  of  said  contract  the  said 

is  indebted  to  h .  .    in  the  sum  of    

dollars. 

995  Employment;  housekeeper,  Narr.  (111.) 

For   that   whereas,   the   said   defendants,    , 

heretofore,  to  wit,  on  the   day  of   , 

19.  .,  at, to  wit,  at  said  county,  in  consid- 
eration that  the  plaintiff  had  before  that  time,  at  the  special 
instance  and  request  of  the  said  defendants,  bestowed  work, 
labor,  diligence,  care,  attention  and  attendance  and  services 
of  said  plaintiff*  as  housekeeper  and  attendant  for  said  defend- 
ants at  the  city  of  ,  in  said  county,  the  said  de- 
fendants undertook  and  then  and  there  faithfully  promised  to 

pay  said  plaintiff  the  sum  of dollars  of  lawful 

money,  when  the  said  defendants  should  be  thereunto  after- 
wards requested.  Nevertheless,  etc. 


ASSUMPSIT  385 

996  Employment;  municipal  employee,  extra  work 

A  regular  employee  of  a  municipal  corporation  has  no  right 
of  action  against  it  upon  a  quantum  meruit  for  work  performed 
outside  of  his  regular  hours,^° 

997  Employment;  public  officer,  action 

A  person  who  is  entitled  to  a  public  office  may  sue  for  his 
salary  for  the  time  during  which  he  has  been  wrongfully  pre- 
vented from  performing  his  duties  of  his  office,  regardless  of  his 
earnings  or  opportunities  to  earn  during  such  time,  where  such 
salary  has  not  been  paid  to  any  other  person  for  the  perform- 
ance of  the  duties  of  the  office.^^ 

998  Employment;  police  officer,  Narr.  (111.) 

For  that  whereas,  before  and  at  the  times  hereinafter  men- 
tioned, the  city  of ,  was,  and  for  more  than 

years  last  past  has  been,  a  municipal  corporation  in  the  said 

county  of ,  and  state  of  Illinois,  incorporated  and 

organized  under  an  act  of  the  legislature  of  said  state,  entitled: 
"An  Act  to  pr^ovide  for  the  incorporation  of  cities  and  vil- 
lages," approved  April  10,  1872,  in  force  July  1,  1872. 

That  prior  to  that  date  said  defendant  was  a  municipal  cor- 
poration, organized  under  a  prior  charter  or  act  of  the  legis- 
lature ;  that  the  offices,  positions  and  employments  of 

( )  police  patrolmen  or  policemen  of  the  city  of 

were  created  by  an  act  of  the  legislature  passed  on,  to 

wit,  ,  1 .... ,  and  said  act  authorized  the  appoint- 
ment of  ( )  police  patrolmen  or  police- 
men, to  hold  their  office,  position  or  employment  during  good 
behavior,  and  such  further  number  as  the  city  council  might 
from  time  to  time  provide  for. 

That  on,  to  wit,   ,  1 .... ,  the  legislature  passed 

an  act  empowering  the  city  council  to  increase  the  police  force 
and  the  number  of  offices,  positions  and  employments  of  patrol- 
men, on  the  recommendation  of  the  board  of  police  commis- 
sioners ;  that  on,  to  wit,   ,  1 (Include  other 

dates,  if  any),  the  city  council  of  said  defendant  increased,  by 
ordinance  duly  passed,  upon  said  respective  dates  in  each  in- 
stance upon  the  recommendation  of  the  board  of  police  commis- 
sioners, the  offices,  positions  or  employments  of  police  patrol- 
men by  adding  respectively ;  that  on  the   

day  of ,  1 .... ,  the  city  council  of  defend- 
so  May  V.  Chicago,   222   HI.   595,  si  Bullis  v.  Chicago,  235  111.  472, 
599  (1906).                                                  480. 


386  ANNOTATED   FORMS   OF    PLEADING    AND   PRACTICE 

ant  passed  an  ordinance,  which  is  recorded  on  page   . .  of  the 

city  council  proceedings  of  the  city  of   for  the 

years  1.  .  .,  1.  . .  and  1.  .  .,  in  and  by  which  ordinance  the  city 
council  provided  that  all  meinhers  of  the  police  force,  including 
the  police  patrolmen  or  policemen,  who  were  then  in  the  em- 
ploy of  the  city  should  be,  and  did  from  that  time  henceforth, 
constitute  the  patrolmen,  officers  and  the  police  force  of  the 

city   of    ,   and   said   ordinance   also   provided   the 

oath  to  be  taken,  and  the  duties  of  patrolmen. 

That  on  the    day  of    ,   1 the 

city  council  of  defendant,  by  an  ordinance  duly  passed,  which 
is  recorded  on  page  ....  of  the  council  proceedings  of  1..., 
provided  a  classilication  of  tlie  patrolmen,  and  the  number  of 
patrolmen  that  were  then  upon  the  police  force  of  said  city; 

that  on  the   day  of  ,  1 .  . . ,  the  city 

council  of  defendant  duly  passed  and  published  an  ordinance 

of  the  city  of ,  which  is  recorded  on  pages to 

and  the  pages  following,  of  tiie  council  proceedings  for 

the  years  1 ,  for  the  appropriation  for  po- 
licemen at dollars  each. 

That  on  ,  1.  . . .,  the  city  council  of  defendant 

duly  and  regidarly  passed  an  order  authorizing  the  superin- 
tendent of  police  to  increase  the  number  of  police  officers  or 
employees  on  the  police  force  by  filliug  vacancies  wherever  they 

existed  up  to  and  not  to  exceed patrolmen,  that  being 

the  number  authorizi'd  to  be  appointed  under  the  appropriation 

budget  of  19 ;  that  said  order  so  passed  as  aforesiiid  was 

in  legal  effect  an  ordinance  of  said  defendant. 

That  on ,  1 ,  there  was  duly  passed  by  said 

defendant  an  ordinance  of  said  defendant,  which  occurs  in  vol- 
ume   of  the  Revised  Code  of ,1 ,  as  chap- 
ter ....,  and  which  creates  an  executive  department  of  the 
municipal  government  known  as  the  department  of  police,  em- 
bracing the  superintendent  of  police,  certain  officers  of  police, 
and  the  police  patrolmen  that  have  been  appointed  or  may  be 
authorized   by  ordinance. 

That  from  time  to  time  since  1 ,  the  common  council  have 

authorized  the  appointment  and  employment  of  large  numbers 
of  police  patrolmen,  until  the  number  authorized  and  appointed 

has  reached  the  number  of,  to  wi{, ;  and  that  on,  to 

wit,  ,  the  defendant  duly  passed  an  ordinance  of  said 

city,  by  vote  of  two-thirds  of  all  the  aldermen  elected,  together 
with  the  signature  and  assent  of  the  mayor,  in  and  by  which 
ordinance  it  is  ordained  and  ordered  that  the  police  force  shall 

consist   of    ( )    police  patrolmen,   together 

with  the  other  officers. 

That  bv  the  said  ordinance  creating  said  executive  depart- 
ment there  was  created  the  office  of  superintendent  of  police, 
which  superintendent,  by  the  provisions  of  said  ordinance,  was 
to  be  the  head  of  said  police  department,  and  was  to  be  ap- 


ASSUMPSIT  387 

pointed  by  the  mayor  of  said  city,  by  and  with  the  consent  of 

the  city  council,  on  the  first  Monday  in   ,  1 .... , 

or  as  soon  thereafter  as  may  be,  and  biennially  thereafter. 

That  the  council  of  the  said  city  of ,  as  here- 
inbefore referred  to,  consists  of  a  board  of  aldermen,  who  were 
duly  elected  from  their  respective  wards,  by  a  plurality  of  all 
votes  cast  at  their  respective  elections,  and  that  the  ordinances 
hereinbefore  referred  to  were  duly  passed  by  a  two-thirds  vote 
of  all  of  said  aldermen  so  elected,  and  holding  the  office  at  the 
respective  times  at  which  said  ordinances  were  passed. 

That  was  duly  elected  mayor  of  the  said  city 

of by  a  plurality  of  all  the  votes  cast  at  an  elec- 
tion held  in  the  said  city  of on  the  first  Tuesday 

of  ,  1 .... ,  and  duly  qualified  as  said  mayor  on 

the  first  day  of  ,  1 ;  that   was 

on,  to  wit,  the  first  IMonday  of ,  1 ,  duly  ap- 
pointed by  said  mayor  of  said  city  of   ,  by  and 

with  the  advice  and  consent  of  the  city  council  of  said  city, 
as  superintendent  of  police,  and  then  and  there  began  to,  and 
did,  take  charge  of  the  office  of  superintendent  of  police,  and 
conduct  the  business  of  said  superintendent  of  police,  and  was 
afterwards,  to  wit,  on  ,  1.,..,  on  recommenda- 
tion by  the  mayor,  duly  confirmed  by  the  countdl  of  said  city 
of  ,  as  the  superintendent  of  police,  and  there- 
upon became  such  superintendent  of  police,  and  under  said 
appointment  and  like  reappointments  he  continued  to  hold  the 
position,  and  be  the  superintendent  of  police  of  said  city,  un- 
til, to  wit,   ,  1.  . . . 

That  heretofore,  to  wit,  in  the  year  ,  before  the  city 

election  of  that  year,  held  on  the  first  Tuesday  of , 

1.  . .  .,  more  than  one  thousand  of  the  legal  voters  of  the  said 

city   of    ,   voting   at   the   last  preceding   election, 

petitioned  the  judge  of  the  county  court  of county, 

in  which  said  city  is  located,  to  submit  to  the  vote  of  all  the  elec- 
tors of  said  city  the  proposition  as  to  whether  such  city,  and 
the  electors  thereof,  shall  adopt  and  become  entitled  to  the  bene- 
fits of  the  civil  service  act. 

That  the  county  court  thereupon  submitted  such  proposition 
at  the  next  succeeding  city  election,  and  an  order  was  entered 
of  record  in  said  county  court  submitting  such  proposition  as 

aforesaid ;  that  the  said  judge  of  the  county  court  of 

county  gave  at  least  ten  days'  notice  of  the  election  at  which 
such  proposition  was  to  be  submitted,  by  publication  of  such 
notice  in  one  or  more  newspapers  published  within  said  city, 
for  at  least  five  days;  the  first  publication  was  at  least  ten  days 
before  the  day  of  election ;  said  election  was  held  under  the 
election  law  in  force  in  said  city,  on,  to  wit,  the  first  Tuesday 

of ,  1 .... ,  and  the  proposition  so  to  be  voted  for 

appeared  in  plain,  prominent  type  at  the  head  of  every  ticket, 


388  ANNOTATED   FORMS  OF   PLEADING   AND  PRACTICE 

and  preceding  the  names  of  persons  to  be  voted  upon  for  the 
various  offices  at  said  election. 

That  a  majority  of  the  votes  cast  upon  such  proposition  were 
for  such  proposition,  and  the  said  civil  service  act  was  thereby 
adopted  by  said  city,  and  the  mayor  thereupon  issued  a  procla- 
mation declaring  said  act  in  full  force  in  said  city ;  and  not  less 
than  forty  or  more  than  ninety  days  thereafter  said  mayor 
appointed  three  persons,  who  constitute  and  are  known  as  the 
civil  service  commissioners  of  said  city,  one  for  three  years, 
one  for  two  years  and  one  for  one  year  from  the  time  of  their 
ai)pointment,  and  until  their  respective  successors  are  appointed 
and  qualified ;  and  in  every  year  thereafter  the  mayor  did  in 
like  manner  appoint  one  person  as  a  successor  of  the  commis- 
sioner whose  term  expired  in  that  year,  to  serve  as  such  com- 
missioner for  three  years,  and  until  his  successor  is  appointed 
and  qualified. 

Said  commissioners  were  appointed  from  time  to  time  by 

the  miayor  until  the  said   day  of   , 

1 .... ,  when , and were  the  com- 
missioners aforesaid,  and  duly  appointed  as  aforesaid  by  the 

mayor  of  the  city  of    ;  that  said  commissioners 

have  classified  all  of  the  offices  and  places  of  employment  in 
said  city  of ,  with  reference  to  examinations  pro- 
vided for  in  the  civil  service  act,  except  those  offices  and  places 

of  employment  mentioned  in  section    of  that  act,  and 

the  offices  and  places  so  classified  by  said  commission  consti- 
tute the  classified  civil  service  of  said  city,  and  the  position  or 
employment  of  patrolmen  was  duly  classified  by  said  commis- 
sion, and  is  under  the  Civil  Service  act,  and  constitutes  part  of 
the  classified  civil  service  of  said  city;  that  said  commission 
made  rules  to  carry  out  the  purpose  of  the  said  act,  for  exami- 
nations, appointments  and  removals,  in  accordance  with  its 
provisions. 

That  the  first  board  of  civil  service  commissioners  in  1 , 

at  the  request  of  the  chief  executive  officers  of  the  said  city  of 

and  the   comptroller  of  said   city,   adopted  the 

practice  of  passing  upon  and  certifying  all  payrolls  of  the  em- 
ployes  of  said   city  of    ,   including   the   payrolls 

of  all  policemen  in  the  employ  of  said  city,  which  practice  has 
continued  from  thence  hitherto ;  and  it  was  then  and  ever  since 
has  been  required  by  the  comptroller  of  the  said  city  that  all 
payrolls  of  the  city  of ,  including  the  police  pay- 
roll, should  be  so  certified  as  a  condition  precedent  to  payment 
thereof. 

That  on,  to  wit,  ,  1 ,  plaintiff  was  a  citizen 

of  the  United  States  of  America  above  the  age  of  twenty-one 
years,  and   for   more  than  two  years  prior  thereto  had  been 

continuously  a  resident  of  the  city  of    ,  in  said 

county  and  state,  and  was  then  a  qualified  elector  of  said  city 


ASSUMPSIT  389 

of  ,  and  had  never  been  a  defaulter  to  said  mu- 
nicipal corporation,  the  city  of 

That  on,  to  wit,   ,  1 ,  plaintiff  took  what  is 

called  the  civil  service  examination,  as  to  his  qualifications  for 
the    position    or    employment    of    patrolman    of    the    city    of 

,  which  examination  was  conducted  by  and  under 

the  direction  of  the  civil  service  commissioners  of  the  city  of 

Upon  the  said  examination  plaintiff  was  passed 

as  duly  qualified  for  the  position  or  employment  of  patrolman 

of  said  city,  having  passed  with  a  grade  of,  to  wit, per 

cent  upon  a  scale  of  one  hundred  per  cent. 

That  on,  to  wit,  ,  1 ,  said  superintendent  of 

police  notified  said  commission  of  a  vacancy  in  the  positions  or 
employments  of  patrolmen,  and  said  commission  certified  to 
the  said  superintendent  of  police  the  name  and  address  of  your 
petitioner,  as  standing  highest  upon  the  register  for  the  class 
or  grade  to  which  said  position  belongs,  and  the  said  super- 
intendent of  police  notified  said  commission  of  the  position 
or  employment  of  patrolman  to  be  filled  separately,  and  filled 
such  place  by  the  appointment  of  plaintiff,  certified  to  him  by 
said  commission.  That  the  position  or  employment  of  patrol- 
men in  the  city  of is  not  such  a  position  or  em- 
ployment as  is  provided  for  in  section  II  of  the  said  Civil  Serv- 
ice act. 

That  plaintiff  on,  to  wit, ,  1 ,  took  the  oath 

prescribed  for  such  patrolmen,  and  at  once  entered  upon  his 

duties  as  patrolman  of  the  city  of  ........ ,  under  the  Civil 

Service  act,  and  the  ordinances  of  said  city. 

That  on;  to  wit,  the day  of ,1 , 

said  civil  service  commissioners  certified  to  the  comptroller  of 
said  city  the  appointment  of  plaintiff  to  the  position  or  em- 
ployment of  patrolman  in  the  classified  service  of  said  city ;  and 
plaintiff  avers  that  he  still  is  a  patrolman  of  said  city  of 
,  duly  appointed  and  qualified,  and  lawfully  en- 
titled to  all  the  rights  and  privileges  of  said  position  or  em- 
ployment, including  the  right  to  be  paid  as  patrolman  from 
time  to  time  thereafter,  as  hereinafter  claimed.  That  during 
all  the  said  time  said  plaintiff  has  never  violated  any  of  the 

rules  prescribed  by  the  authorities  of  the  city  of 

for  the  regulation  of  the  police  department,  nor  any  of  the 
rules  of  the  civil  service  commission,  nor  any  of  the  provisions 
of  the  Civil  Service  act. 

That  for,  to  vv-it,  ....  years  next  prior  to 

,    plaintiff    was    from    month    to    month    duly    certified 

by  said  civil  service  commission  upon  the  payrolls  of  said  city, 
as  a  police  patrolman  entitled  to  pay  as  patrolman  of  said  city ; 

and  that  upon  such  payrolls  he  was,  until  , , 

paid  from  month  to  month  as  patrolman. 

That  he  has  never  been  laid  off  for  lack  of  work  or  lack 
of  funds,  or  for  other  necessary  cause;  that  by  the  appropria- 


390  ANNOTATED  FORMS  OP   PLEADING  AND   PRACTICE 

tion  made  by  defendant  in  or  about  the  month  of , 

. , .  .,  for  the  payment  of  otiicers  and  patrolmen  in  the  employ- 
ment of  said  city,  and  for  other  municipal  purposes,  for  the 

year    ,    there    was    an    appropriation    made    for    police 

patrolmen  of  said  city,  including dollars  ($ ) 

per  year  for  plaintiff,  i)ayable  monthly;  and  that  in  like  man- 
ner in  or  about  the  months  of ,  1.  . . ., , 

1.  .  .  .  and  ,  1.  . .  .,  there  ■vvere  further  appropria- 
tions made  by  the  defendant,  for  the  payment  of  police  patrol- 
men of  the  said  city,  for  the  years  respectively  1 .... ,  1 . . .  . 

and  1. . .  .,  including dollars  ($ )  per  year 

for  plaintiff,  payable  monthly ;  and  that  said  appropriations 
were  made  for  the  benefit  of  all  police  pntrolmeii  and  police 
officers  of  said  city,  including  plaintiff  among  the  number. 

That  defendant  prevented  plaintiff  from  occupying  the  posi- 
tion, office  or  employment  of  patrolman  from,  to  wit, , 

1 .... ,  to,  to  wit,   ,  1 .  . . .    (at  which  last  date  he 

was  reinstated  in  said  office  or  employment)  without  just  cause 
or  excuse,  and  refused  without  just  cause  or  excuse  to  pay  him, 
nor  did  said  defendant  pay  to  any  other  person,  officer,  em- 
ployee or  patrolman,  the  money  ai)i)ropriated  for  his  said  posi- 
tion or  employment  during  said  time;  that  plaintiff'  made  due 
and  diligent  effort  to  obtain  employment  after  he  was  refused 
said  employment,  but  was  unable  to  obtain  any  other  employ- 
ment except  for  a  short  period,  during  which  he  earned,  to  wat, 
$ 

By  reason  of  all  of  which  the  defendant  became  liable  and 

promised  to  pay  the  plaintiff  the  sum  of dollars 

($ )  per  month  from ,  1 .  . .  . ,  to , 

1. .  . .  ;  yet  the  defendant,  though  often  requested,  has  not  paid 
said  sums  of  money,  or  any  part  thereof. 


Attorney  for  plaintiff. 

999  Employment;  superintendent  gas  plant,  Narr.  (111.) 

For  that  whereas,  heretofore,  on,  to  wit,  the    

day  of ,  19 . . ,  the  defendant .  . ,  in  con- 
sideration of  the  plaintiff's  promise  to  enter  into  the  service  of 

the  defendant.,    for  a  term  of   ,  to  superintend 

the  construction  of  a  gas  plant  then  contemplated,  in  the  city 
of  ,  and  of  similar  plants  in  other  cities  if  de- 
sired by  said  defendant..,  to  superintend  the  manufacture  of 
gas,  to  design  and  superintend  the  construction  of  apparatus 
and  machinery  by  which  gas  is  used,  and  to  do  such  other  duties 
in  connection  with  the  defendant .  . '  business  as  the  defendant .  . 

might   designate,    at  a   compensation   of    dollars 

($ )  per  year,  payable  in  monthly  instalments,  undertook 

and  agreed  to  pay  the  plaintiff  in  addition  to  his  said  salary 

of dollars  ($ )  per  year  for , 

three-eighths  of  one  cent  per  pound  for  each  pound  of  carbonic 


ASSUMPSIT  391 

acid  gas  sold  from  the  plant  then  about  to  be  constructed  at 

the   works  of    ,   in    ,   for  a  term  of 

years  following;  said  date,  such  payments  of  three- 
eighths  of  one  cent  per  pound  to  be  made  in  monthly  instal- 
ments at  the  end  of  each  month  for  the  gas  manufactured  and 
sold  during  the  previous  month;  and  the  plaintiff  avers  that 
he  did  then  and  there  enter  the  employ  of  the  defendant.  . 
and    remained    in    the    employment    of    the    defendant .  .     for 

and  did  superintend  the  construction  of  the  plant 

then  contemplated  in   and  of  such  other  similar 

plants  in  other  cities  as  the  defendant .  .  desired  or  required, 
and  did  design  and  superintend  the  construction  of  apparatus 
and  machinery  by  wdiich  such  gas  was  used,  and  did  perform 
such  other  duties  in  connection  with  the  defendant.  . '  business 
as  the  said  defendant .  .    designated,  all  for  the  full  term  of 

.  • ,  and  did  fulfill  and  perform  all  agreements  by 

him  to  be  performed  according  to  the  terms  of  the  said  con- 
tract; yet  the  defendant.  .  not  regarding  afore- 
said promises,  but  contriving  and  intending  to  wrong  and  de- 
fraud the  plaintiff,  failed  and  refused  to  fulfill  ....  aforesaid 

promises  in  this,  that  although  in  the  months  of ,  a 

large  amount  of  gas  was  manufactured  and  sold  at  said  plant  of 

said to  wit,  the  amount  of pounds, 

for  which  the  plaintiff'  by  virtue  of  said  agreement  was  en- 
titled to  the  sum  of,  to  wit, dollars  ($ ), 

nevertheless  the  defendant.,  although  often  requested  there- 
unto did  not  nor  would  pay  the  plaintiff  the  said  sum  of,  to  wit, 

dollars  ($ ),  but  of  said  sum  ha. .  paid  the 

plaintiff  only  the  sum  of,  to  wit, dollars  ($ ), 

and  ha.,  failed  and  refused  and  still  do.,  fail  and  refuse  to 

pay  the  plaintiff  the  said  balance  to  wit,   dollars 

($ ),  or  any  part  thereof,  to  the  damage  of  the  plaintiff' 

in  the  sum  of dollars  ($ )  ;  and  therefore  he 

brings  this  suit,  etc. 

1000  Employment;  theatrical  manager,  Narr.  (111.) 

For  that  whereas  the  plaintiff,  being  a  joint  owner  of  a  valu- 
able leasehold  estate,  to  wit,  a  lease  for  a  term  of 

years  of  the  premises  known  as  the ,  in 

of  great  value,  to  wit,  the  sum  of  $ ,  on  or  about  the 

day    of    ,    19 ,    in    the    city    of 

•  • ,  to  wit,  in  the  place  aforesaid,  entered  into  a  cer- 
tain contract  or  agreement  with  the  defendant,  whereby  it  was 
agreed  that  in  consideration  that  the  plaintiff  should  assign  all 
his  interest  in  the  said  leasehold  estate  to  the  defendant,  the 
defendant  would  employ  him  (the  plaintiff)  as  manager  of  the 

said  theater  for  the  term  of    years,   at  a  salary  of 

dollars  a  week,  and   per  cent  of  the  net 

profits  of  the  theatrical  business  to  be  conducted  by  defendant 


392  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

on  said  premises,  to  he  accounted  and  paid  at  the  end  of  each 
and  every  theatrical  season  during  said  term;  tliat  said  plain- 
tiff accepted  said  employment  and  arrangement  in  good  faith, 

and  did,  to  wit,  on  the day  of ,  1 . . .  . , 

so  assign  all  his  interest  in  said  lease  to  the  defendant;  that, 

to  wit,  on  the   day  of   ,  1 ,  the 

said  plaintiff'  accepted  and  entered  upon  his  position  as  man- 
ager as  aforesaid,  and  continued  to  perform  his  duties  in  accord- 
ance with  said  contract  in  a  competent  and  conscientious  man- 
ner up  to  about  the day  of ,  1 ....  ; 

that  on  the  day  of  the  date  last  aforesaid  the  defendant  wrong- 
fully, unlawfully  and  in  violation  of  his  said  contract  dis- 
charged the  plaintiff,  and  thereafter,  though  often  requested, 
has  altogether  refused  to  perform  his  said  contract,  or  to  pay 
to  the  plaintiff  any  of  the  said  sums  so  due  as  aforesaid,  to  the 
damage  of  the  plaintiff  of dollars,  etc. 

1001  Fees  of  officers,  constables 

At  common  law  an  action  of  assumpsit  is  maintainable  by  of- 
ficers to  collect  their  fees.^^  This  action  is  not  superceded  by 
the  statutory  remedy  which  permits  the  making  up  of  a  fee 
bill  and  its  placing  in  the  hands  of  an  officer  for  collection. ^^ 
The  defendant  in  an  attachment  or  execution  is  liable  in  an 
action  of  assumpsit  to  a  constable  for  the  expenses  incurred  by 
him  while  preserving  the  property  levied  upon  under  the  writ.^* 

FIRE  INSURANCE 

1002  Proof  of  loss 

(Venue) 

Be  it  known  that  on  this day  of , 

19.  .,  before  me,  a  notary  public,  legally  qualified  and  residing 

in  said  county  and  state,  personally  appeared , 

of  the  county  of ,  and  state  of  Illinois,  who  being 

duly  sworn,   according  to  law,   declares  under  oath   that  the 

of ,  through  its  agency  at , 

Illinois,  did  on  the day  of , 

19 . . ,  issue  to their  policy  of  insurance.  No , 

the  written  body  of  which,  with  its  immediate  context  is  as  fol- 
lows :  No ,  dollars.  By  this  policy  of  in- 
surance the ,  in  consideration  of and 

of  dollars,  will  indemnify   against 

loss dollars,  on  the  one  story  frame  building  and 

52  Morton  v.  Bailey,  1  Scam.  213,  28,  c.  33,  Hurd's  Stat.  1909,  p.  618. 
215    (1835).  54Eames  v.  Hennessy,  22  111.  629, 

53  Morton   v.   Bailey,   supra;   Sec.       632    (1859). 


ASSUMPSIT  393 

additions  attached  thereto  now  and  to  be  occupied  by  assured 
or  tenant  as  a  dwelling,  and  situate  on  assured 's  farm  in  section 
J  in county,  Illinois dol- 
lars on  household  furniture,  useful  and  ornamental,  kitchen  fur- 
niture and  utensils,  family  wearing  apparel,  printed  books, 
plate  and  plated  ware,  paintings  and  engravings  and  their  frames 
(in  case  of  loss  no  one  to  be  valued  at  more  than  cost),  piano, 
organ,  semng  machine,  family  supplies  and  fuel,  all  while  con- 
tained therein.  Reference  is  hereby  had  to  assured 's  appli- 
cation No ,  which  is  made  a  part  of  this  policy  and  a  war- 
ranty on  the  part  of  the  assured.  (Here  follows  the  usual 
"lightning  clause"),  then  steam  powder  permitted  for  thresh- 
ing, not  to  be  set  nearer  than yards  to  the  house  insured. 

dollars  additional  insurance  on item 

permitted;  which  said  policy  was  duly  issued  and  delivered  to 

affiant  on  the   day  of   ,  and  by  its 

terms  the  affiant  was  insured  against  loss  for  a  period  of 

years  from ,  19 . . ,  to ,  19 . . ,  at 

noon. 

That  in  addition  to  the  amount  covered  by  said  policy  of  said 

company  there  was dollars  other  insurance  made 

thereon,   to   the   amount  of    dollars  as  specified 

herein:  On  household  furniture  therein,  on  beds  and  bedding 
therein   and   on   wearing   apparel   therein,    and   on   provisions 

therein,  and  on  sewing  machine  therein  dollars. 

On  piano  therein   dollars,  contained  in  dwelling 

house  in  section  ,  besides  which  there  was  no  in- 
surance   thereon;   the   above   amount    being   insured   by    the 

of ,  Illinois. 

That  on  the day  of ,  19  •  • , 

a  fire  occurred  by  which  the  property  insured  was  totally  de- 
stroyed, and  the  assured  under  above  described  policies  suf- 
fered loss  to  the  amount  of dollars  on  the  property 

covered  by  said  policy  as  set  forth  in  the  accompanying  sched- 
ules marked  respectively,  schedule  "A"  and  schedule  "B," 
which  affiant  declares  to  be  a  just,  true  and  faithful  statement 
of  the  loss  of  assured  so  far  as  he  has  been  able  to  ascertain  the 
same,  and  he  states  that  schedule  "A"  correctly  sets  forth  the 
plan  of  assured 's  building,  and  its  value  immediately  before 
said  fire,  and  schedule  "B"  the  values  of  all  the  articles  of 
personal  property  in  cash  at  the  time  of  the  fire. 

That  the  actual  cash  value  of  the  property  so  insured  amounted 
as  set  forth  in  said  schedules  "A"  and  "B,"  which  are  made 

a  part  of  this  affidavit,  to  the  total  sum  of dollars 

on    dwelling    insured    under    first    item    in    said    policy,    and 

dollars  on  contents  of  same  as  described  in  the 

second  item  in  said  policy,  at  the  time  immediately  preceding 
the  fire,  as  will  appear  by  the  said  annexed  schedules,  showing 
a  full  and  accurate  description  of  each  kind  of  property,  and 
the  value  of  the  same  with  the  loss  on  each  stated  separately. 


394  ANNOTATED   FOKMS   OF    PLEADIN'G    AND    PRACTICE 

That  all  the  property  insured,  and  which  is  described  on  said 
schedules  bt'louged  to  the  assured,    

That  the  buiitling  insured,  and  which  contained  the  prop- 
erty destroyetl  was  occupied  solely  by  the  assureil  for  a  private 
dwelling  and  for  no  other  purpose. 

That  said  fire  occurred  on  the day  of , 

19.  .,  and  was  first  discovered  about o'clock  in 

the  afternoon  of  said  day,  and  originated  from  a  cause  totally 
unknown  to  aftiant,  or  to  either  of  the  assured;  that  on  said 

day  affiant  and  his  wife,   left  home  about   

o'eloek  noon  on  saitl  day  and  went  to about 

miles  distant;  that  the  fires  were  carefully  looked  to  and  that 
the  lire  in  the  kitchen  stuve  had  died  out  entirely,  as  an  early 
dinner  had  been  provided  in  anticipation  of  getting  an  early 
start;  that  only  a  very  small  amount  of  tire  was  left  in  tlu-  fire- 
place, and  this  was  carefully  covered  ))y  affiant. 

The  fire  was  first  discovered  by  a  neighbor  who  went  for  as- 
sistance, anil  when  he  with  anoliier  neighbor  reached  the  house 
the  roof  had  fallen  in,  or  was  just  on  the  point  of  doing  so,  as 
affiant  is  informed  and  believes,  and  that  when  he  returned 
about  a  half  hour  before  sunset  the  house  was  entirely  burned 
up.     Nothing  whatever  was  removed  from  the  house. 

By  reason  of  which  fire  the  assured  under  said  policy  have 
sustained  a  total  loss  under  same,  and  present  their  elaim  for 

the  full  amount  thereof,  being dollars  on  the  first 

item,  and dollars  on  the  second  item,  and  in  all 

dollars. 

And  the  said  affiant  further  declares  that  the  fire  did  not 
originate  by  any  act,  design  or  procurement  on  the  part  of  the 
assured  or  of  either  of  them,  or  in  conse(|uence  of  any  fraud 
or  evil  practice  done  or  suffered  by  them,  or  either  of  them, 
and  that  nothing  has  been  done  by,  or  with,  their  privity  or 
consent  to  violate  the  conditions  of  said  policy  of  insurance,  or 
to  render  the  same  void. 

Subscribed,  etc. 


Notary's  certificate 

(Venue) 

I,  a  notary  public  in  and  for  said  county,  do 

hereby  certify  that  I  am  a  resident  of  ,  and  re- 
side about    miles  from  the  site  of  the  house  described 

in  within  proof  of  loss;  that  I  am  in  no  way  concerned  in  the 
loss  as  a  creditor  or  otherwise  nor  related  to  the  assured ;  that 
I  have  carefully  examined  the  circumstances  attending  said 
loss;  that  I  know  the  character  and  circumstances  of  assured 
and  verily  believe  that  the  assured  have,  without  fraud,  sus- 
tained loss  on  the  property  described  in  schedules  "A"  and 


ASSUMPSIT  395 

"B"  hereto  attached  to  the  amounts  therein,  and  in  said  proof 
of  loss  stated. 

Witness,  etc.  (Notary  Public) 

Schedule  "A" 

Being  a  plan  of  the  house  of   insured  under 

policy  i\o of  the    of    and 

which  has  been  destroyed  by  fire,  and  an  itemized  statement 
of  the  value  thereof. 

The  following  is  a  statement  of  the  materials,  labor,  etc.,  in 
said  house.     (Insert  itemized  statement) 

The  foregoing  is  what  I  consider  a  fair  estimate  as  to  quanti- 
ties and  values: 

Said  house  was  completed  in 19 . .    and 

has  since  been  occupied  as  a  private  dwelling  by  assured,'  hus- 
band and  wife,  and  family,  consisting  of  one  child  now 
years  old,  and  no  other. 

(Attach  plan  of  house,  in  ink) 

Schedule  ''B" 

List  of  personal  property  lost  by  fire  and  which  were  insured 
under  policy  No of  the  and  which  be- 
longed to    with   the  present   cash   value  of  each 

article  at  the  time  of  said  fire.     (Insert  articles  and  values.) 

1003  Arbitration 

Under  a.  policy  providing  for  an  award  and  arbitration  in 
case  of  loss  by  fire,  a  submission  to  arbitration,  if  not  waived,  is 
a  condition  precedent  to  the  right  to  maintain  an  action  on  the 
policy.^^ 

1004  Parties 

An  action  on  a  fire  insurance  policy  must  be  brought  by  the 
person  or  persons  having  an  insurable  interest  at  the  time  of 
the  loss.^° 

1005  Bridge  destroyed,  efc,  Narr.  (Md.) 

For  that  on  the   day  of  ,  in  the 

year  19.  .,  by  its  policy  of  insurance  issued  as  of  that  date,  and 
in  consideration  of  the  stipulation  therein  named  and  of  the 

payment  of dollars  and cents  ($ ), 

as  a  premium,  the  said company  of .' 

s'-  Southern     Home     Ins.     Co.     v.  so  Dix  v.   Mercantile  Ins.  Co.    22 

Faulkner,  57  Fla.   194,  198    (1909).       111.  272   (1859).  ' 


396  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

county,  defendant,  promised  and  a^eed  with  the , 

plaintiff,  to  insure  it,  subject  to  the  conditions  therein  named, 

and  for  and  during  the  period  conunenc-ing  on  the   

day  of  ,  19. .,  at  noon,  to  tlie   day 

of 19.  .,  at  noon,  to  the  extent  of   

dollars  ($ )  against  all  direct  loss  or  damage  by  fire  on 

that  part  of  main located  in county. 

Other  insurance  permitted  without  notice  until  required.  Per- 
mission to  nuike  ordinary  alterations  and  rei)airs  and  to  carry 
over,  attach  and  maintain  telegraph  and  tele])lione  wires  through 
and  on  the  roof  and  siilcs  of  said  bridge;  and  which  said  loss 
when  it  did  occur,  the  said  insurance  company  did  agree,  sub- 
ject to  the  terms  of  its  policy,  to  pay  to  the  plaintiff  within 
ninety  days  after  due  notice,  ascertainment,  estimate  and  satis- 
factory proof  of  loss  was  received. 

That  on  the   day  of   ,  19 .  . ,  and 

during  the  time  prescribed  in  said  policy,  the  said  bridge  therein 
described  and  owned  by  the  plaintilf  was  consumed  and  totally 
destroyed  by  liie;  that  forthwith  the  i)laiiitilf  did  give  notice 
thereof  to  the  defendant  company  and  furnish  the  j)roof  of  loss 
required,  and  offered  and  tendered  itself  ready  and  willing 
to  furnish  such  other  proof  as  the  defendant's  officers  and 
agents  should  reasonably  demand;  and  the  plaintiff  did  there- 
upon demand  of  the  defendant  the  payment  of  the  amount  for 
■which  it  was  insured  under  said  policy,  which  demand  said 
defendant  has  neglected  and  refused  to  pay  and  perform;  that 
such  lire  and  such  consecjuent  loss  were  not  such  as  were  by 
said  policy  of  insurance  excluded  from  its  operation  and  effect, 
but  were  such  as  were  reasonably  and  legitimately  included 
within  the  provisions  of  said  policy  of  insurance  of  the  defend- 
ant; and  that  all  times  have  elapsed  and  all  things  and  condi- 
tions have  happened  and  have  been  performed,  which,  under 
the  terms  of  said  policy  of  insurance  were  necessary  to  have 
elapsed  and  to  have  been  performed  to  entitle  the  plaintiff  to 
the  said  payment  and  to  have  and  maintain  this  action. 

And  therefore  the  plaintiff  brings  this  suit  and  claims 
dollars  ($ ) 

1006  Chattels  on  faxm,  Narr.  (Md.) 

For  that  the  plaintiff  was  the  owner  of  certain  chattels  de- 
scribed in  a  certain  policy  No ,  issued  by  said  defend- 
ant compan}^  on  the day  of ,  19 .  . , 

situated   on   the   farm   of    ,    about    

mile. .  west  of ,  at  the  time  of  this  insurance  against 

fire  and  also  at  the  time  of  their  destruction  by  fire  as  here- 
inafter set  forth ;  that  on  the day  of , 

19.  .,  and  theretofore,  the  defendant  was  and  still  is  a  corpora- 
tion of  the  state  of  Maryland,  duly  incorporated  with  authority 
to  insure  risks  by  fire;  that  on  the  said  day  in  consideration  of 


ASSUMPSIT 


397 


the  membership  of  said  plaintiff  in  said  defendant  company  and 
the  passing  and  issuing  of  a  certain  note  of  hand  of  said  piaintitt, 

dated  on  the  said   ^^^  ^^  r  \' \, '  X^' ' '„' 

for  the  sum  of    ($ )    dollars,   payable   on 

demand,  and  bearing  interest  at  such  rate  as  may  be  faxed  by 
the  board,  not  exceeding  ....  per  cent  (.  .%)  per  annum,  said 
defendant  executed  to  said  plaintiff  a  certain  sealed  policy  ot 

insurance  number    on  the  said   chattels,   wherein   said 

defendant  insured  said  plaintiff,  his  executors,  administrators 
or  assigns,  agreeably  to  the  terms  and  conditions  ot  the  said 

company,  for   ($ )   dollars,  against  all  loss 

or  damage  by  fire  or  lightning  that  may  happen  at  any  time 
after  the  date  of  said  sealed  policy,  so  long  as  the  terms  and 
conditions  annexed  to  said  policy  are  complied  with,  or  until 

canceled  by  order  of  the  company ;  that  on  the  •••••••. • 

^ay  of ,   19- •»  a  part  of  said  chattels,  insured 

under  said  poiicy  to  the  sum  of   ............    ($■  -^  •  •  • )   dol- 
lars, were  totally  destroyed  by  fire,  that  the  plaintiff  s  loss  by 
said  fire,  insured  by  said  policy,  was  ..... ...... .    ($••••  •  • ) j 

that  the  plaintiff  furnished  to  the  defendant  full  proof  ot  said 
loss  and  interest,  and  duly  performed  all  the  conditions  of  the 
said  policy  on  his  part,  but  that  the  defendant  has  not  paid 
the  said  loss;  and  the  plaintiff  says  that  said  policy  has  never 
been  canceled  by  order  of  said  defendant  company,  and  that 
at  the  time  of  the  happening  of  the  fire  aforesaid,  was  m  full 
force  and  effect.    And  the  plaintiff  claims  therefore  $ 

1007  Dwelling,  Narr.  (111.) 

For  that  whereas  the  defendant  on,  to  wit,  the  ... . day 

of  19 . . ,  in,  to  wit ,  m  the  county 

and  state  aforesaid,  made  its  policy  of  insurance  and  delivered 
the  same  to  the  plaintiff  and  for  the  consideration  therein  ex- 
pressed promised  the  plaintiff  in  the  terms  of  said  policy  and 
the  conditions  thereto  annexed,  which  said  policy  and  condi- 
tions here  follow  in  the  words  and  figures  following,  to  wit : 
(Insert  copy  of  policy).  . 

And  the  plaintiff  avers  that  at  the  time  of  the  making  of 
the  said  policv  and  from  thence  until  the  happening  ot  the  loss 
and  damage  hereinafter  mentioned,  it  had  an  interest  m  the 
said  property  to  the  amount  of  the  said  sum  so  by  the  defend- 
and  insured,  as  aforesaid;  and  the  plaintiff  further  avers  that 

on,  to  wit,  the   day  of   ■■"■•■■'■■^  19        the 

said  propertv  was  consumed  and  destroyed  by  fire;  whereby 
the  plaintiff 'then  and  there  sustained  loss  and  damage  on  the 
said  property  to  the  full  amount  of  the  sum  mentioned  m  the 
said  policy  of  insurance,  and  which  said  loss  happened  with- 
out fraud  or  evil  practice  of  this  plaintiff. 

And  the  plaintiff  further  avers  that  forthwith,  atter  the 
happening  of  said  loss  and  damage,  on,  to  wit,  the 


398  ANNOTATED   FORMS   OF   PLEADING    AND    PRACTICE 

day  of ,  19.  .,  it  there  gave  notice  thereof  to  the 

defendant  and  as  soon  thereafter  as  possible  on,   to   wit,   the 

day  of    ,   19..,   there   delivered   to 

the  defendant  as  particular  an  account  of  the  said  loss  and 
damage   as  the   nature  of  the  case  would  admit,   which  said 

account  was  signed  by  , , 

of  and  for  this  plaintiff;  which  said  account,  also  called  "Proof 
of  Loss,"  stated  the  number  of  the  policy  of  insurance,  the 

same  being,  to  wit,  No ;  that  the  total  insurance  then 

carried  on  the  premises  was dollars  and  no  more ; 

that  the  property  described  in  tlie  said  policy  belonged  at  the 
time  of  the  lire  heretofore  mentioned  to  this  plaintiff;  that  the 
real  estate  was  owned  by  this  plaintiff'  in  fee  simple;  that  there 
were  no  encumbrances  of  any  nature  or  amount  at  the  time 
of  the  tire ;  that  the  building  described,  or  containing  the  prop- 
erty described,  in  said  policy  was  occupied  as  a  , 

by  this  plaintiff  at  tiie  time  of  the  tire;  that  no  assignment, 
transfer  or  encumbrance,  or  change  of  ownership  or  occupancy 
of  the  property  described  had  been  made  since  the  issuing  of 

the  aforesaid  policy ;  that  the  tire  occurred  on  the 

day  of ,  19 . .  ;  at  about  the  hour  of 

0  'clock  P.  M. ;  that  the  cause  of  the  said  tire  was  unknown, 

but  was  probably  spontaneous  combustion  of   in 

the    ;   that  the  amount  claimed  by   the  plaintiff 

of  the  said  defendant  was  the  sum  of    dollars ; 

that  the  said  fire  did  not  originate  by  any  act,  design  or  pro- 
curement on  the  part  of  the  assured,  being  the  said  plaintiff, 
or  in  consequence  of  any  fraud  or  evil  practice  done  or  suf- 
fered by  said  assured;  that  nothing  has  been  done  by  or  with 
the  privity  of  the  assured,  being  this  plaintiff,  to  violate  the 
conditions  of  the  policy,  or  render  it  void ;  that  no  articles  were 
mentioned  in  the  said  account  but  such  as  were  in  the  building 
damaged,  or  destroyed,  and  belonging  to  and  in  possession  of 
the  said  assured,  being  this  plaintiff,  at  the  time  of  the  said 
fire;  that  no  property  saved  had  been  in  any  manner  concealed 

and  that  no  attempt  to  deceive  the  said   ,  being 

the  defendant  herein,  had  in  any  manner  been  made  as  to  the 
extent  of  the  said  loss  and  damage;  that  the  said  account  of 
the   said  loss   and   damage   was  accompanied   by   the   oath   of 

,   of  and  for  this  plaintiff, 

and  accompanied  by  his  oath  that  the  statements  made  in  said 
account  were  true;  and  to  the  said  account,  also  called  "Proof 
of  Loss,"  was  annexed  and  therewith  delivered  a  certificate 
under  the  hand  and  seal  of  a  notary  public  nearest  to  the  place 

of  the  said  fire,  to  wit, ,  showing  that  he,  the  said 

notary,  was  not  concerned  in  the  loss  or  claim  set  forth  in  said 
statement  or  Proof  of  Loss,  either  as  a  creditor  or  otherwise; 
that  he  was  not  related  to  the  assured  or  sufferers;  that  he  had 
examined  the  circumstances  attending  the  fire  and  damages, 
as  alleged;  that  he  was  well  acquainted  with  the  character  and 


ASSUMPSIT  399 

circumstances  of  the  assured,  and  did  verily  believe  that  the 
assured  had  by  misfortune,  and  without  fraud  or  evil  practice, 
sustained  loss  and  damage  on  the  property  described  in  the 
policy  aforesaid,  to  the  amount  of  $ And  plaintiff  fur- 
ther avers  that,  although  it  has  kept  and  performed  all  things 
in  the  said  policy  contained  on  its  part  to  be  kept  and  per- 
formed, and,  although  it  has  sustained  loss  and  damage  by 
fire  on  the  said  property  in  the  manner  and  to  the  amount 
aforesaid,  nevertheless,  the  defendant,  though  often  thereto  re- 
quested, has  not  yet  paid  to  the  plaintiff  that  amount,  or  any 
part  thereof,  but  refuses  so  to  do,  to  the  damage  of  the  plain- 
tiff of    dollars,  and  therefore  the  said  plaintiff 

brings  his  suit,  etc. 

h 

For  that  whereas  heretofore,  to  wit,  on  the 

day  of ,  19 . . ,  to  wit,  at  the 

county  aforesaid  on  the  application  of  the  plaintiff,  in  con- 
sideration of  a  certain  sum  of  money  in  the  policy  mentioned 
and  paid  to  it  by  the  plaintiff,  the  defendant  made  a  certain, 
policy  of  insurance  in  writing  and  delivered  to  the  plaintiff 
its  said  policy  of  insurance,  being  in  the  words  and  figures 
following:     (Set  out  policy  of  insurance  in  haec  verba). 

And  the  plaintiff'  avers  that  at  the  time  of  the  making  of 
the  said  policy  of  insurance,  as  aforesaid,  and  from  then  until 
the  loss  and  damage  hereinafter  mentioned,  he  had  an  interest 
in  the  said  insured  premises  and  property  to  a  large  amount, 
to  wit,  to  the  amount  of  all  the  money  insured  thereon  to  wit, 
at aforesaid. 

And  that  afterv.-ards,  to  wit,  on  the day  of , 

19. .,  the  said  premises  and  property  in  the  said  policy  of  insur- 
ance mentioned  was  burned,  consumed  and  destroyed  by  fire, 
which  did  not  happen  by  an  invasion,  insurrection,  riot,  or 
civil  war  or  commotion,  or  by  any  military  or  usurped  power, 
or  by  order  of  any  civil  authority,  or  by  theft  or  by  neglect 
of  the  insured  to  use  all  reasonable  means  to  save  and  preserve 
the  property  at  and  after  the  fire,  or  by  explosion  of  any  kind : 
whereby  the  plaintiff  sustained  damages  to  a  large  amount, 
to  wit,  to  the  amount  of  the  money  thereon  assured,  to  wit,  at 
in  the  county  aforesaid. 

And  the  plaintiff  further  avers  that  the  said  premises  and 
property   mentioned   at   the    time   of   the    destruction   thereof, 

as  aforesaid,  was  also  insured   for  the  sum  of    

dollars  in of and  the  

for  the  sum  of dollars,  no  part  of  which  has  been 

paid. 

And  the  plaintiff  avers  that  the  said  buildings  in  the  said 
policy  mentioned  was  not  at  any  time  during  the  continuance 
thereof  appropriated,  applied,  or  used  to  or  for  the  purpose 
of  carrying  on  or  exercising  therein,  any  trade,  business  or  vo- 


400  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

cation  denominated  hazardous  or  extra-hazardous,  or  for  keep- 
inj^  or  storing  in  said  building,  or  manufacturing  or  using 
therein,  any  of  the  spirits,  gases,  oils,  explosives,  or  products  pro- 
hibited in  and  by  the  provisions  of  said  policy. 

And  plaintiff  further  avers  that  after  the  destruction  of  the 
said  property  as  aforesaid,  the  said  plaintiff  performed  all  of 
the  acts  and  things  required  of  him  by  said  policy  to  be  per- 
formed by  giving  notice  of  loss  and  making  proof  thereof;  and 

the  defendant  then  and  there,  to  wit,  on  the day 

of ,  19. .,  received  and  accepted  the  said 

proof  as  satisfactory;  and  waived  any  and  all  other  acts  in 
respect  thereof  on  the  part  of  the  plaintiff. 

And  the  plaintiff  further  avers  that  although  he  has  kept 
and  performed  all  things  in  the  said  policy  contained  on  his 
part  to  be  kept  and  performed,  and  although  he  has  sustained 
loss  and  damage  by  fire  on  the  said  property  in  the  manner 
and  in  the  amount  aforesaid,  nevertheless  the  defendant,  though 
often  requested,  has  not  yet  paid  the  plaintiff"  that  amount,  or 
any  part  thereof,  but  refuses  so  to  do,  to  the  damage  of  the 
plaintiff  of dollars ;  wherefore  he  brings  suit,  etc. 

c 

For  that  whereas  the   defendant   on   the    day 

of ,  .  .  .  . ,  in  the  city  of ,  county  and 

state  aforesaid,  made  its  policy  of  insurance  and  delivered  the 
same  to  F  and  N,  assignors  of  the  plaintiff,  and  for  the  con- 
sideration  therein   expressed,    did    insure   the   said   F    and   N 

against  loss  or  damage  by  fire,  to  the  amount  of 

($ )  dollars,  in  the  terms  of  the  said  policy  and  the  con- 
ditions thereto  annexed;  and  at  a  time  subseciuent  to  the  loss 
and  damage  by  fire,  as  hereinafter  set  out,  and  previous  to  the 
bringing  of  this  suit,  the  said  F  and  N  assigned  all  their  right, 
title  and  interest  in  and  to  said  loss  and  damage  in  the  terras 
of  said  policy  and  conditions  thereto  annexed,  which  said  policy 
and  conditions  here  follow,  in  these  words  and  figures,  to  wit: 
(Insert  copy  of  policy). 

And  the  plaintiff  further  avers  that  at  the  time  of  the  mak- 
ing of  the  said  policy,  and  from  thence  until  the  happening  of 
the  loss  and  damage  hereinafter  mentioned,  the  said  F  and  N, 
assignors  of  the  plaintiff,  had  an  interest  in  the  said  propert}^ 
to  the  amount  of  the  said  sum  so  by  the  defendant  insured 
thereon  as  aforesaid. 

And  the  plaintiff  further  avers,  that  on  the    

day  of ,  . . .  . ,  about  the  hour  of o'clock  P. 

M.,  the  said  property  was  consumed  and  destroyed  by  fire, 
whereby  the  said  F  and  N  then  and  there  sustained  loss  and 
damage  on  the  said  property  to  the  amount  of  the  sum  last 
aforesaid,  which  said  loss  and  damage  did  not  happen  by  means 
of  any  invasion,  insurrection,  riot,  civil  commotion,  or  of  any 


ASSUMPSIT  401 

military  or  usurped  power.  And  the  plaintiff  further  avers 
that  forthwith  after  the  happening  of  the  said  loss  and  dam- 
age, to  wit,  on  the day  of 19 

the  said  F  and  N  there  gave  notice  thereof  to  'the  defendant' 
and  as  soon  thereafter  as  possible,  to  wit,  on  this  same  day 
there  dehvered  to  the  defendant  as  particular  an  account  of 
the  said  loss  and  damage  as  the  nature  of  the  case  would  admit  • 
which  said  account  was  signed  by  the  said  F  and  N  and  accom- 
panied by  their  oaths  that  the  same  was  in  all  respects  just 
and  true,  and  showed  the  value  of  the  said  property    and  in 
what  general  manner  the  said  building  was  occupied  at  the 
time  of  the  happening  of  the  said  loss  and  damage,  and  the 
name  of  the  person  then  in  the  actual  possession  thereof    and 
when  and  how  the  said  fire  originated,  so  far  as  the  said  F  and 
N  knew  or  believed,  and  their  interest  in  the  said  property  at 
that  time;  to  which  said  account  was  annexed  and  therewith 
delivered,  a  certificate,  under  the  hand  and  seal  of  the  notary 
public  nearest  to  the  place  of  the  said  fire,  to  wit,  S    who  is 
not  concerned  in  the  loss  as  a  creditor  or  otherwise  nor  related 
to  assured,  showing  that  he,  the  said  notary  had  examined  the 
circumstances  attending  the  said  fire  and  the  loss  and  dam- 
age alleged,  and  was  acquainted  with  the   character  and  cir- 
cumstances of  the  plaintiff  and  verily  believed  that  the  plaintiff 
had  by  misfortune,  without  fraud  or  evil  practice,  sustained 
loss    and    damage    on    the   said    property    to    the    amount    of 

dollars. 

And  the  plaintiff  further  avers  that  the  building  which  con- 
tained the  said  property  insured  was  not  at  or  since  that  time 
appropriated,  applied  or  used  to  or  for  the  purpose  of  carrying 
on  or  exercising  therein  any  trade,  business  or  vocation  de- 
nominated hazardous  or  extra-hazardous  or  specified  in  the 
said  memorandum  of  special  rates,  or  for  the  purpose  of  storing 
therein  any  of  the  articles,  goods  or  merchandise  in  the  said  con- 
ditions denominated  hazardous  or  extra-hazardous,  or  included 
in  the  said  memorandum  of  special  rates. 

And  the  plaintiff  further  avers,  that  although  the  said  F 
and  N  have  kept  and  performed  all  things  in  the  said  policy  con- 
tamed  on  their  parts  to  be  kept  and  performed,  and  although 
they  have  sustained  loss  and  damage  by  fire  on  the  said  property 
m  the  manner  and  to  the  amount  aforesaid,  nevertheless  the 
defendant,  though  often  thereto  requested  has  not  yet  paid  to 
the  said  F  and  N,  or  to  the  plaintiff,  that  amount,  or  anv  part 
thereof,  but  refuses  so  to  do,  to  the  damage  of  the  plaintiff 
^^ dollars,  and  therefore  he  brings  his  suit,  etc. 

d 

For  that  whereas,  the  defendant,  on  to  wit,  the 

.f^ay  of ,  19.  .,  in  the  city  of ..'.*.'.", 

in  the  county  aforesaid,  made  its  policy  of  insurance  and  de- 


402  ANNOTATED    FORMS   OF   PLEADING    AND    PRACTICE 

livered  the  same  to  the  said  ,  and  for  the  con- 
sideration therein  expressed,  promised  the  said    , 

in  the  terms  of  the  saitl  policy  and  the  conditions  tiu-ri'to  an- 
nexed, which  said  policy  and  conditions  here  follow  in  these 
words  and  figures,  to  wit,  (Set  out  policy  in  liaec  verba). 

And  the  plaintiff  avers  that  on,   to  wit,   the    

day  of 19.  .,  she  assigned  all  of  her  right, 

title  and  interest  in  and  to  the  saiil  policy  of  insurance  and 
all  benefits  and  advantages  to  be  dei-ived  therefrom,  to  the  said 
,  which  said  assignment  was  approved  and  con- 
sented to  by  the  said  defendant,  which  said  assignment,  ap- 
proval and  consent  are  endorsed  on  the  back  of  the  said  policy 
of  insurance,  in  words  and  figures  as  follows:  (Set  out  assign- 
ment). 

And  the  plaintiff  further  avers  that  on,  to  wit,  the 

day  of ,  19.  .,  the  said  as- 
signed all  of  his  right,  title  and  interest  in  and  to  the  said 
policy  of  insurance  and  all  benefits  and  advantages  to  be  de- 
rived therefrom  to  the  said  and  that  the  defend- 
ant approved  and  consented  to  the  said  assignment,  which  said 
assignment,  consent  and  approval  is  in  writing,  attached  to  the 
said  policy  of  insurance,  and  is  in  words  and  figures,  as  fol- 
lows:   (Set  out  second  assignment). 

And  the  plaintiff  further  avers  that  at  the  time  of  the  mak- 
ing of  the  said  policv  and  from  thence  until,  to  wit,  the  said 

day  of ,  19 .  . , . 

had  an  interest  in  the  said  property  to  the  amount  of  the  said 
sum  so  by  the  defendant  insured  thereon  as  aforesaid,  and  that 
since  the  time  of  the  making  of  the  said  assignment  of  the  said 

policy  by  the  said  to  the  said   ,  the 

said   had  an  interest  in  the  said  property  to  the 

amount  of  the  said  sum  so  by  the  defendant  insured  thereon 

as  aforesaid,  and  that  the  said  ,  since  the  time  of 

the  said  assignment  to  him  from  the  said and  un- 
til the  happening  of  the  loss  and  damage  hereinafter  mentioned, 
had  an  interest  in  the  said  property  to  the  amount  of  the  said 
sum  so  by  the  defendant  insured  thereon,  as  aforesaid. 

And  the  plaintiff  further  avers  that  on,  to  wit,  the 

day  of ,  19 . . ,  the  said  property  was  con- 
sumed and  destroyed  by  fire,  whereby  the  said    

then  and  there  sustained  loss  and  damage  on  the  said  property 

to  the  amount  of dollars  and cents, 

which  said  loss  and  damage  did  not  happen  by  means  of  any 
invasion,  insurrection,  riot,  or  civil  commotion,  or  of  any  mili- 
tary or  usurped  power. 

And   the   plaintiff   further   avers   that   forthwith,    after  the 

happening  of  the  said  loss  and  damage,  to  wit,  on  the 

day  of ,  19 .  . ,  he  there  gave  notice  thereof 

to  the  defendant,  and  as  soon  thereafter  as  possible,  to  wit,  the 


ASSUMPSIT  403 

day  of ,  19 . . ,  the  said 

delivered  to  the  defendant  as  particular  an  ac- 
count of  the  said  loss  and  damage  as  the  nature  of  the  case 
would    admit,    which    said    account    was    signed    by    the    said 

and  accompanied  by  his  oath  that  the  same  was 

in  all  respects  just  and  true  and  showed  the  value  of  the  said 
property,  the  occupancy  of  the  said  building  at  the  time  of 
the  happening  of  the  said  loss  and  damage,  and  when  and  how 

the  said  fire  originated,  as  far  as  the  said   knew 

or  believed,  and  his  interest  in  the  said  property  at  that  time, 
to  which  said  account  was  annexed  and  delivered  therewith, 
a   certificate   under   the  hand   and  seal   of  the   notary  public 

nearest  to  the  said  place  of  the  said  fire,  to  wit,  

showing  that  he,  the  said  notary  had  examined  the  circum- 
stances attending  the  said  fire  and  the  loss  and  damage  al- 
leged, and  was  acquainted  with  the  character  and  circumstances 

of   the   said    and   verily    believed   that   the   said 

had   by   misfortune   and   without   fraud   or  evil 

practice,  sustained  loss  and  damage  on  the  said  property,  to 
the  amount  of dollars  and cents. 

And  the  plaintiff  further  avers  that  there  was  not,  at  or  since 
the  time  of  making  of  said  policy,  any  other  insurance  on  the 
said  property,  and  that  the  said  building  was  not  at  or  since  that 
time,  appropriated,  applied  or  used  to  or  for  the  purpose  of 
carrying  on  or  exercising  therein,  any  trade,  business  or  voca- 
tion denominated  as  hazardous,  or  extra-hazardous,  or  specified 
in  the  said  memorandum  of  special  rates,  or  for  the  purpose 
of  storing  therein  any  of  the  articles,  goods  or  merchandise  in 
the  said  condition  denominated  as  hazardous  or  extra-hazardous, 
or  included  in  the  said  memorandum  of  special  rates. 

And  the  plaintiff  further  avers  that  on,  to  wit,  the 

day  of ,  19.  .,  an  agreement  was  entered 

into  between  the  said ,  and  the  defendant  in  words 

and  figures  as  follows :  (Set  out  agreement  for  appraisal  of  loss 
etc.). 

And  that  the  said  appraisers  in  said  agreement  mentioned 
made  the  following  declaration  :     (Insert  same). 

And  that  the  said  appraisers  in  the  said  contract  mentioned 
made  the  following  award:    (Set  out  award  or  appraisal). 

Nevertheless,  although  the  said  plaintiff  and  the  succeeding 
assignees  of  said  policy  have  kept  and  performed  all  things 
in  the  said  policy  mentioned,  on  their  part  to  be  kept  and  per- 
formed, the  defendant  has  not  yet  paid  to  the  plaintiff  the 
said  amount  of  the  loss  and  damage  aforesaid,  or  any  part 
thereof,  but  refuses  so  to  do,  to  the  damage,  etc. 

(Maryland) 

(Precede  this  by  common  counts)  And  for  that  the  de- 
fendant is  a  corporation,  duly  incorporated  under  the  laws  of 


404  ANNOTATED   FORMS   OP    PLEADING   AND   PRACTICE 

the  State  of   ,  and  during  the  times  hereinafter 

mentioned  was,  and  now  is,  engaged  in  the  business  of  fire  in- 
surance in  the  city  of ,  in  tlie  state  of  :\Iaryland; 

issued  policies  and  made  contracts  agreeing  to  pay  certain  sums 
of  money,  in  the  event  that  the  party  or  parties  named  in  said 
policies  or  contracts  should  sustain  loss  or  damage  by  fire ;  and 
by  one  of  its  said  contracts  or  policies  in  writing,  commonly 

called  an  insurance  policy,  dated ,  19.  ., 

and   herewith  filed,   in  consideration   of    dollars, 

paid  by  plaintiff  to  defendant,  undertook  and  agreed  to  in- 
demnify the  phiintilf  against  loss  or  damage  by  fire  to  certain 
property    therein    described,    to    an    amount    not    exceeding 

dollars  ($ )  on  the  two-story  frame  shingled 

roofed  building  and  additions  thereto  occupied  as  a  dwelling, 

situated  on  the side  of near 

in  the district  of county,  state  of  ]\Iary- 

land,   and    dollars    ($ )    on   the   household 

furniture,  silver  and  plated  ware,  printed  ])Ooks  and  printed 
music,  paintings  and  their  frames,  clocks,  watclies,  jewelry, 
bicycles,  sewing  machine,  trunks  and  other  traveling  equip- 
meiits,  family  wearing  apparel  and  stores;  for  the  term  of  one 
year  from  the  date   of  said  policy;   that   is  to  say,   the  said 

company  of , the  defendant  in  this  case, 

issued  and  delivered  to the  phiintiff  in  the  above  entitled 

case,  a  policy  or  contract  of  insurance  on  the  property,  as  above 
described,  and  her  interest  therein,  agreeing  to  indemnify  her 
against  any  loss  by  the  destruction  or  partial  destruction  thereof 
by  fire  prior  to  the  first  day  of ,  19 . .  ;  that  after- 
wards, to  wit,  on  or  about  the day  of , 

19.  .,  and  while  said  policy  was  in  force,  the  said  dwelling  and 
personal  property  covered  by  said  policy  was  totally  destroyed 
by  fire;  that  the  loss  and  damage  to  the  said  plaintiff  on  her 

said  dwelling  house  was dollars 

($ )  and  that  on  her  furniture  and  other  articles  cov- 
ered by  the dollar  clause  of  said  policy,  her  loss 

and  damage  was  dollare,   ($ )  ;  that  under 

the  terms  of  the  three-fourth  value   clause,   attached  to  said 

policy,  the  plaintiff  is  entitled  to  be  paid  the  sum  of 

dollars  ($ )  for  the  loss  and  destruction  of  said  dwelling 

and  is  entitled  to  be  paid  the  sum  of dollars  and 

cents  ($ )  for  the  destruction  of  the  household  fur- 
niture and  other  articles  covered  by  the dollar  clause 

of  said  insurance  policy;  and  the  plaintiff  notified  the  defend- 
ant of  the  destruction  and  loss  of  said  dwelling,  household  fur- 
niture and  other  articles  covered  by  the  said dol- 
lar clause  in  said  insurance  policy;  and  defendant's  adjuster 
and  agent  visited  said  property  and  saw  that  it  was  totally 
destroyed.  That  said  plaintiff  furnished  to  the  defendant  full 
proof  of  her  loss  and  damage,  and  otherwise  duly  performed 


ASSUMPSIT  405 

all  the  conditions  and  stipulations  of  said  policy  or  contract 
on  her  part  to  be  performed.     That  the  defendant,  the  said 

company  of   has  refused  and  still 

refuses  to  pay  her,  the  said  plaintiff the  amount 

of  said  loss,  due  and  owing  to  said  plaintiff  under  said  policy 
or  contract  of  insurance,  and  has  denied  and  denies  all  liability 
under  said  policy. 

And  the  plaintiff  claims  therefore  as  her  damages,  the  sum 
of dollars  ($ ) 


(Michigan) 

For  that  whereas,  heretofore,  to  wit,  on  the    

day  of  ,  19 .  . ,  said  plaintiff'  was  the  owner  of 

certain  property  hereinafter  described,  and  the  said  defendant 
was  an  insurance  company  engaged  in  the  business  of  fire  in- 
surance in  the  state  of  Michigan  and  elsewhere;  and  thereupon, 

to  wit,  on  the    day  of ,  19.., 

the  said  defendant  did  issue  to  the  plaintiff  its  policy  of  insur- 
ance   numbered     dated    the     day    of 

,  19 . . ,  wherein  and  whereby  for  a  premium  of 

$ ,   to  said  defendant  in  hand   paid   by   the   said 

plaintiff,  the  said  defendant  did  insure  the  said  plaintiff  for 

the  term  of  one  year  from  and  after  the   day  of 

,  19 . . ,  at  noon,  to  the day  of , 

19 . . ,  at  noon,  against  all  direct  loss  or  damage  by  fire,  to  an 

amount  not  exceeding  $ ,  to  certain  property  described 

and  fully  set  forth  in  said  policy  of  insurance,  and  described 
as  follows,  to  wit:  (Describe  property  insured),  which  said 
policy  of  insurance  so  covering  and  insuring  said  property 
above  described  was  duly  accepted  by  plaintiff,  and  is  still  held 
and  retained  by  plaintiff. 

And  plaintiff  avers  that  afterward,  to  wit,  on  the  

day  of ,  19. .,  direct  loss  and  damage  by  fire  oc- 
curred to  the  property  above  described,  damaging  the  same  to 
the  extent  of,  to  wit,  upwards  of  $ 

And  plaintiff  avers  that  there  was  other  insurance  upon  the 
said  property  in  favor  of  the  plaintiff,  and  that  the  pro  rata 
proportion  of  such  loss  under  such  policy  to  said  defendant 
was,  to  w^it,  $ 

And  plaintiff  avers  that  due  notice  of  such  loss  and  due  and 
proper  proofs  of  such  loss  were  furnished  to  said  defendant  on, 
to  wit,  the  day  of  ,  19.  ,,  and  plain- 
tiff in  all  things  conformed  to  the  requirements  of  the  con- 
tract between  plaintiff  and  defendant.  And  although  the  time 
allowed  by  said  policy  for  the  payment  of  said  loss  has  long 
since  expired,  yet  the  said  defendant  has  wholly  refused  to 
pay  said,  to  wit,  $ ,  or  any  part  thereof,  although  here- 
tofore, frequently  requested  so  to  do  by  plaintiff,  to  plaintiff's 


406  ANNOTATED   FUKMS   OF   PLEADING   AND   PRACTICE 

damage  $ and  interest  and  costs,  and  therefore  she  brings 

suit,  etc. 

1008  Furniture,  Narr.  (District  of  Columbia) 

For    that    whereas,    heretofore,    to    wit,    on    or    about    the 

day  of  ,  19 .  . ,  in  the  city  of 

,  in  the  District  of  Columbia,  by  a  certain  policy 

of  insurance  then  and  there  made,  for  and  in  consideration  of 
stipulations  named   and  the  payment   by   the   plaintilf  to  the 

defendant  of  the  sum  of dollars  as  preiidum,  the 

defendant  did  insure  the  plaintiff  for  the  term  of 

years from  on  or  about  the day  of 

against  all  direct  loss  or  damage  by  fire,  provided 

that  such  loss  was  not  caused  by  invasion,  insurrection,  riot, 
civil  war  or  commotion  or  military  or  usurped  power,  or  by 
order  of  any  civil  autliority,  or  l)y  theft,  or  by  neglect  of  the 
insured  to  use  all  reasonable  means  to  save  and  preserve  the 
property  at  and  after  fire,   or  by  an  explosion  of  any   kind, 

to  an  amount  not  exceeding  the  sura  of  dollars, 

on  the  following  described  property  named  in  said  policy  of 
insurance,  to  wit,  household  furniture,  (Describe  property)  all 

while  contained  in  the   story  (frame),  metal  roof 

building,  and  while  occupied  by  the  assured  as  a  dwelling  and 

situated   on   lot   nuiaber    That   by   the  terms   of  said 

policy  the  defendant  agreed  to  pay  the  amount  of  any  such  l()ss, 
not  exceeding  the  amount  of  said  insurance  at  the  expiration 

of  days  after  the  defendant  had  been  furnished 

by  the  plaintiff  with  the  proofs  of  such  loss. 

The  plaintiff  avers  that  at  the  time  of  the  making  of  said 
policy  of  insurance  and  from  thence  until  the  loss  and  damage 
hereinafter  mentioned,  he  was  possessed  as  sole  owner  of  said 
insured  property  in  said  policy  mentioned  and  thereby  intended 
to  be  insured;  that  the  premium  in  said  policy  mentioned  was 
at  the  time  of  the  making  thereof  duly  paid  by  him  to  the  de- 
fendant; that  after  making  of  said  policy  and  whilst  the  same 

was  and  remained  in  full  force,  to  wit,  on  or  about  the 

day  of   ,  the  said  insured  property  was  burned, 

damaged,  consumed  and  destroyed  by  fire,  whereby  the  plain- 

tiif  sustained  loss  and  damage,  to  wit, dollars ; 

and  that  although  he  has  in  all  things  conformed  to  and  per- 
formed and  observed  all  and  singular  the  stipulations  in  said 
policy  mentioned  and  on  his  part  to  be  performed  and  observed 
according  to  the  true  intent  and  meaning  thereof,  and  furnished 

proof  of  said  loss  on  or  about  the day  of 

in  such  a  form  as  was  acceptable  to  the  defendant,  acting 
through  its  general  agent,  due  and  formal  proof  thereof  being 
by  the  said  defendant,  acting  through  said  general  agent  ex- 
pressly waived,  the  defendant  has  refused  to  pay  him  the  said 
loss,  or  any  part  thereof,  and  the  defendant  and  its  agents  have 


ASSUMPSIT  407 

refused  to  replace  or  repair  the  said  insured  property  which 
was  burned,  damaged  and  destroyed  as  aforesaid  with  property 
of  like  kind  and  quality  or  with  any  property  whatsoever,  such 
refusal  on  the  part  of  defendant  being  contrary  to  the  true  in- 
tent or  meaning  of  the  said  policy  of  insurance  and  of  the 
agreement  of  the  defendant  in  that  behalf  made  and  set  forth 
as  aforesaid. 

And  the  plaintiff  avers  that  the  defendant  although  often 
requested  so  to  do,  has  refused  to  perform  its  said  agreement 
and  has  broken  the  same  and  to  perform  the  same  does  still 
refuse,     (Add  common  counts) 

(Maryland) 

(Precede  this  by  common  counts)  And  for  that  the  defend- 
ant by  its  contract  in  writing,  commonly  called  an  insurance 

policy,  dated ,  19.  .,  and  herewith  filed,  in  consideration 

of dollars  and cents  paid  by  plain- 
tiff to  defendant,  undertook  and  agreed  to  indemnify  the  plain- 
tiff against  loss  or  damage  by  fire  to  certain  property  therein 

described  to  an  amount  not  exceeding  $ for  the  term 

of years  from  said  date ;  and  afterwards,  to  wit,  on 

,  19. .,  and  while  said  policy  was  in  force, 

the  said  property  described  therein  was  totally  destroyed  by 
fire;  and  the  plaintiff  promptly  notified  the  defendant  thereof, 
and  the  defendant's  adjuster  and  agent  visited  said  property- 
and  saw  that  it  was  totally  destroyed  and  the  defendant  waived 
the  filing  by  plaintiff'  with  defendant  of  the  formal  proofs  of 
loss,  and  refused  and  still  refuses  to  pay  the  amount  of  said 
loss,  and  denied  and  denies  all  liability  under  said  policy,  and 
the  plaintiff  complied  with  all  the  provisions  of  said  policy  on 
his  part,  except  so  far  as  compliance  therewith  was  waived  by 
tlie  defendant,  and  the  defendant  unjustly  refuses  to  pay  said 
loss,  and  said  loss  exceeded  $ 


And  the  plaintiff  claims  $. 


h 


(Precede  this  by  common    counts)     And  for   that   on  the 

day  of   ,  19 .  . ,  the  said  defendant, 

by  its  instrument  of  writing,  otherwise  known  as  an  insurance 

policy.  No ,  in  consideration  of  the  stipulations  therein 

named,  and  of  the  sum  of  $ premium  paid  to  said  de- 
fendant, did  insure  and  cause  to  be  insured,  the  said  plaintiff, 

,  for  a  term  of  time  from  the  day 

of ,  in  the  year  19 .  . ,  at  noon,  to  the 

day  of   ,  19.  .,  at  noon,  against  all  direct  loss  or 

damage  by  fire,  except  as  therein  provided,  to  an  amount  not 
exceeding   dollars,  upon  the  household  furniture 


408  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

and   other  household   chattels  and  effects  therein  mentioned, 

situate  in  the  premises  No street,  , 

Maryland. 

That  said  plaintiff  paid  to  said  defendant  the  consideration 
aforesaid,  and  received  and  accepted  from  said  defendant  the 
policy  of  insurance  aforesaid  of  said  defendant. 

That  on  the day  of ,  19 . . ,  a  fire 

occurred  in  the  premises  No street,  occupied  by 

said  plaintiff,  and  destroyed  and  damaged  the  household  fur- 
niture, goods,  chattels  and  effects  belonging  to  said  plaintiff 
covered  by  said  insurance  policy  of  said  defendant,  to  an  extent 
in  excess  of  said  sum  of dollars. 

That  said  plaintiff  notified  said  defendant  in  writing  of  said 
fire,  and  of  his  loss,  and  did  otherwise  fully  and  completely  per- 
form all  of  the  requirements  of  said  policy  of  insurance  on  his 
part  to  be  performed. 

That  said  plaintiff  has  demanded  of  said  defendant  the  amount 
due  said  plaintiff'  by  reason  of  the  terms  of  said  policy  and  his 
loss  as  aforesaid,  but  that  said  defendant  has  failed  and  re- 
fused to  pay  the  same,  notwithstanding  that  more  than  sixty 
days  have  expired  since  a  full  and  complete  proof  of  loss  had 
been  furnished  to  said  defendant  by  said  plaintiff. 

That  by  reason  thereof  said  plaintiff  has  suffered  great  loss 
and  damage. 

And  the  plaintiff  claims dollars  damages. 

1009  Furniture  and  fixtures,  Narr.  (Fla.) 

For  that  in  consideration  of  the  sum  of  dol- 
lars to  it  in  hand  paid  and  payment  acknowledged,  the  said 
defendant  issued  to  the  plaintiff its  policy  of  in- 
surance and  thereby  promised  the  plaintiff  in  the  terms  of 
said  policy  and  upon  the  conditions  thereto  annexed,  to  insure 

the  plaintiff  against  loss  and  damage  by  fire  to 

the  amount  of    dollars  and  to  make  good  unto 

said  plaintiff'  the  loss  or  damage  that  should  happen  by  fire, 

not  exceeding  the  said  sum  of    dollars  for  the 

term  of    years   from   the    day  of 

,  19 .  . ,  to  the  ....  day  of on  the 

store  fixtures  and  furniture  including  iron  safe  while  contained 

therein  to  the  extent  of dollars,  said  furniture  and 

fixtures  being  at  that  time  and  at  the  time  the  same  was  de- 
stroyed by  fire  in  the  store  building  and  located  on  (Give  legal 
description)  the  loss  to  be  paid  after  days'  no- 
tice, and  proof  made  by  the  plaintiff  and  received  by  the  de- 
fendant; and  in  said  policy  sundry  provisions,  conditions,  pro- 
hibitions and  stipulations  were  and  are  contained  and  thereto 
annexed,  as  by  a  copy  of  the  original  policy  filed  herewith  and 
made  a  part  of  this  declaration  will  more  fully  appear. 

And  afterwards,  to  wit,  on  the day  of 


ASSUMPSIT  409 

the  said  store  house  above  mentioned  and  the  store  furnishings 

and  fixtures  and trees  were  totally  destroyed  and 

burned  by  fire,  and  damage  and  loss  was  thereby  occasioned  to 

the  said  plaintiff to  the  amount  of 

dollars  on  the  store,  furniture  and  fixtures,  and   

dollars  on  the  trees  near  said  property  under  such  circumstances 
as  to  come  within  the  promise  and  undertaking  of  said  policy 
and  to  render  liable  and  oblige  the  said  defendant  to  insure  the 

said  plaintiff to  the  said  amount  of 

dollars  on  the  property  aforesaid;  of  which  loss  the  said  de- 
fendant has  had  due  notice  immediately  after  said  fire  occurred 
and  sent  its  adjuster  and  agent  to  the  scene  of  said  fire  to  ad- 
just and  pay  said  loss;  at  which  time  the  said  adjuster  and 
agent  of  the  defendant  was  furnished  with  all  the  evidence  to 
be  had  as  to  the  cause  of  said  fire  and  all  the  other  things  ap- 
pertaining thereto ;  and  on  the day  of , 

"W'ithin days  after  said  fire,  the  plaintiff  furnished 

the  defendant  with  formal  proofs  of  loss  which  the  defendant 
has  kept  and  has  made  no  objections  thereto;  and  although 
all  conditions  and  requirements  contained  in  said  policy  of  in- 
surance so  issued,  as  aforesaid,  have  been  performed  and  ful- 
filled and  all  events  and  things  existed  and  happened  and  all 
periods  of  time  have  elapsed  to  entitle  the  plaintiff  to  a  per- 
formance by  the  defendant  of  said  contract,  and  to  entitle  the 

plaintiff  to  said  sum  of   dollars,  and  nothing  has 

occurred  to  prevent  the  plaintiff  from  maintaining  this  action, 
yet  the  said  defendant  has  not  paid  nor  made  good  to  said  plain- 
tiff' the  said  amount  of  loss  and  damage  aforesaid,  or  any  part 
thereof,  but  refuses  so  to  do. 

^^  That  the  plaintiff  has  had  to  employ  an  attorney  at  law 
to  collect  the  amount  due  the  plaintiff  under  the  terms  of  said 
policy  of  insurance  because  of  the  damage  and  loss  so  sustained 
by  him  as  aforesaid  and  because  the  defendant  has  failed  and 

refused  to  pay  the  same ;  and  the  plaintiff  claims 

dollars  as  a  reasonable  fee  or  amount  or  compensation  to  pay 
his  said  attorney  for  being  forced  by  the  defendant  to  collect 
said  amount  so  due,  as  aforesaid,  under  the  terms  of  said  policy 
of  insurance,  which  said  amount  the  defendant  is  required  to 

pay. 

1010  Sav.'-mill  and  plant,  Narr.  (111.) 

For  that  whereas,  the  defendant,  on  the  day  of , 

19. .,  at,  to  wit,  the  county  of and  state  of 

,  made  its  policy  of  insurance,  and  delivered  the 

same  to  the  plaintiff,  and  for  the  consideration  therein  ex- 
pressed promised  the  plaintiff,  in  the  terms  of  said  policy  and 
57  In  an  action  upon  a  fire  insur-  Eedding,  47  Fla.  228,  232,  233 
ance  policy,  attorney's  fees  are  re-  (1904);  c.  4173,  Act  1893;  Tillis  v. 
coverable  under  the  Florida  statute,  Liverpool  &  London  &  Globe  Ins. 
the  validity  of  which  has  been  up-  Co.,  46  Fla.  276. 
held.      Hartford    Fire    Ins.    Co.    v. 


410  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

the  conditions  thereto  annexed,  which  said  policy  and  the  con- 
ditions here  follow  in  these  words  and  ligures,  to  wit:  (iSet  out 
contract  of  insurance  in  liacc  verba). 

And  the  plaintiff  further  avers  that  at  the  time  of  the  mak- 
ing of  said  policy  and  froin  thence  until  the  happening  of  the 
loss  and  damage  hereinafter  mentioned,  it,  tiie  plaintiff,  had 
an  interest  in  the  said  property  to  the  amount  of  the  sum  in 
said  policy  set  out  and  l)y  defendant  insured  thereon,  and 
to  the  amount  of  all  the  insurance  on  the  said  proi)erty ;  and  the 

plaintiff  further  avers  that  on  the  ....  day  of , 

19. .,  on  section (Describe  the  real  estate)  in 

the  county  of and  state  of ,  on  which 

said  section  said  property  was  situated,  the  said  property  was 
destroyed  by  fire,  wliei-eby  the  plaintilf  then  and  there  sustained 
loss  and  damage  on  the  said  jn-operty  so  insured,  as  aforesaid, 
to  an  amount  much  in  excess  of  the  sum  mentioned  in  said 
policy,  and  in  excess  of  all  of  the  insurance  on  the  said  ])rop- 
erty,  which  said  lire  and  loss  and  danuige  did  not  happen  l)y 
means  of  any  invasion,  insurrection,  riot,  civil  war  or  connno- 
tion,  or  military  or  usuri)ed  power,  or  by  order  of  any  civil 
authority. 

And  the  plaintiff  further  avers  that  forthwitii,  after  the  hap- 
pening of  said  loss,  to  wit,  on  the day  of , 

19..,  it  gave  notice  thereof  to  the  said  defendant,  and  subse- 
quently, to  wit,  on  the day  of , 

19. .,  and  within days  from  the  date  of 

said  fire,  the  plaintiff  delivered  to  the  defendant  as  particular 
an  account  of  said  loss  and  damage  as  the  nature  of  the  case 
would  admit,  and  in  accordance  with  the  terms  and  require- 
ments  of  the  said  policy  relating  to  notice  and  proofs  of  loss; 
and  the  plaintiff  here  avers  that  the  defendant,  both  before 
and  after  the  furnishing  and  delivery  of  said  proofs  of  loss, 
denied  that  it  was  in  any  wise  liable,  on  said  policy,  for  any 
part  or  portion  of  the  loss  or  damage  so  sustained  by  the  plain- 
tiff as  aforesaid. 

The  plaintiff'  further  avers  that  neither  at  the  time  of  the 
making  and  delivery  of  the  said  policy,  nor  at  any  time  after- 
w'ard,  was  there  any  other  insurance  on  said  property  except 
that  which  was  provided  for,  permitted  or  required  in  and  by 
the  said  policy ;  and  that  at  the  time  of  the  said  fire,  the  plain- 
tiff held  other  policies  of  insurance,  on  said  property,  as  fol- 
low^s:  (Give  number,  expiration,  the  name  of  the  company  and 
amounts  of  each  policy). 

In  addition  to  the  above  insurance,  issued  through  the  agency 

of    ,    at    ,    ,    there    was 

other  insurance  to  the  amount  of   dollars  placed 

with  and  bound  by  said  agency,  but  the  plaintiff  is  not  now 
able  to  give  the  names  of  the  companies  nor  the  amount  of  the 
respective  policies  covering  said  sum  of dollars. 

The  plaintiff'  further  avers  that  it  has  kept  and  performed 


ASSUMPSIT  411 

all  thincrs  in  tlie  said  policy  contained,  on  its  part  to  be  kept 
and  performed,  and  that  it  has  sustained  loss  and  damage  by- 
said  tire  on  said  property,  in  the  manner  and  to  the  amount 
aforesaid;  nevertheless,  the  defendant,  tiiough  often  thereto 
requested,  has  not  yet  paid  to  the  plaintilf  that  amount,  or  any 
part  thereof,  but  refuses  so  to  do,  to  the  damage,  etc. 

1011  Stock  in  trade  and  furniture,  Narr.  (Mich.) 

For  that  whereas,  on  the day  of , 

19..,  and  for  a  long  time  prior  thereto,  the  defendant,  the 

of a corporation, 

was  engaged  in  writing  fire  insurance  risks  and  conducted  a 
general  fire  insurance  business  in  the  state  of  Michigan. 

That  the  said  defendant  had  an  agency  which  was  conducted 

in  its  behalf  by    and    ,  in  the  city 

of ,  in  the  state  of  Michigan. 

That  the  said ,  of ,  a 

corporation,  as  aforesaid,  on  the day  of , 

19.  .,  uiidertook  to  insure  for  said ,  of  the 

city  of ,  state  of  IMichigan,  who  is  plaintiff  herein, 

the  saloon  and  restaurant  furniture,  fixtures  and  appurtenances, 
and  stock  in  trade  at  the  plaintiff's  place  of  business,  situated 

on  the  westerly  side  of street,  being  number  .  . .  ., 

known  as  the   ,  in  the  city  of   and 

state  of  IMicliitran. 

And  thereupon  the  said  defendant,  the ,  on  the 

day  of ,  19  • . ,  issued  a  certain 

fire  insurance  policy,  to  wit,  policy  No ,  and  delivered 

the  same  to  the  said    ,   plaintiff  herein,   whereby 

the  said  defendant,  the   ,  in  consideration  of  the 

sum  of dollars,  to  it  paid  by  the  said  phiintiff.  did 

insure  the  said    against  any  loss  or  damage  by 

fire  to  the  extent  of dollars  on  the  above  named 

property,  more  fully  described  as  the  saloon  and  restaurant 
furniture,  furnishings  and  fixtures,  beer  pumps,  electric 
motor,  gas  engine,  belting,  shafting,  electric  dynamo,  elec- 
tric switchboard,  carbonating  machine  and  all  appliances, 
pipes  and  fixtures  used  in  connection  therewith,  electric  light 
fixtures,  lamps  and  fixtures,  bars  and  bar  furniture,  stoves  and 
ranges,  mirrors,  pictures,  books,  tables,  chairs,  iron  safe,  glass- 
ware, china-ware,  silver-ware,  platcd-ware,  ice-chest,  partition, 
portieres,  rugs,  sideboards,  signs  and  awnings  in  and  outside 
of  the  building,  hot  water  urn,  piano,  cash  register,  nickle-in- 
the-slot  machines,  ornaments,  kitchen  furniture,  and  fixtures  in 
the  toilet  rooms,  and  all  such  other  fixtures,  utensils  and  fur- 
nishings as  were  used  by  the  assured  in  connection  with  his  sa- 
loon and  restaurant. 

Also  his  stock  in  trade,  consisting  principally  of  liquors, 
wines,   beers,   whiskies,   cigars,   tobacco,   mineral   water,   provi- 


412  ANNOTATED   FORAIS   OF   PLEADING   AND   PRACTICE 

sions  and  restaurant  supplies,  all  of  which  were  contained  in 
the  two-story  brick  store  building  and  additions  thereto  situated 

on  the  westerly  side  of  street  at  No ,  and 

known  as  the  ,  in  the  city  of ,  state 

of  Michigan. 

And  the  said  defendant,  in  consideration  of   

($• )   dollars  to  it  paid  by  the  said  plaintiff,  in  the  said 

policy  of  insurance,  undertook  and  promised  to  make  good  to 
the  said  plaintiff,  any  loss  by  fire  not  exceeding  the  sum  of 
($ )  dollars  as  should  happen  to  said  prop- 
erty above  described,  from  the day  of , 

19 .  . ,  at  noon,  to  the  day  of ,  19 . .  [ 

at  noon,  the  amount  of  such  loss  to  be  paid  sixty  (60)  days  after 
due  notice,  ascertainment  and  satisfactory  proof  of  the  loss  ac- 
cording to  the  terms  and  conditions  of  said  policy,  which  said 

premium  of ($ )  dollars  was  duly  paid  in  full 

by  the  said to  the of , 

prior  to  the day  of ,  19. . . 

Tliat  on,  to  wit,  the day  of , 

19. .,  the  said  policy  of  insurance  being  then  in  full  force,  the 
plaintiff  being  in  possession  of  the  said  property  hereinbefore 
described,  and  insured  by  the  said  defendant,  being  the  said  res- 
taurant, fixtures,  appurtenances,  and  stock  in  trade,  described 

more  fully  in  this  declaration  and  situated  at  No 

street,  in  the  city  of ,  state  of  Michigan,  the  plain- 
tiff suffered  damage  by  fire  of,  to  wit, ($ ) 

dollars,  from  which  loss  as  sustained,  the  said  defendant  in  its 

insurance  policy,  to  wit,  No ,  agreed  to  hold  the  said 

plaintiff   harndess   to   the   extent   of    ($ ) 

dollars,  and  tiiereupon  the  said within  sixty  (60) 

days  after  the  said  fire,  gave  the  said  defendant  notice  in  writ- 
ing of  the  said  fire  and  the  amount  of  the  loss  thereby  sus- 
tained by  the  said  plaintiff,  as  ascertained ;  and  proof  of  same 
was  duly  made  in  accordance  with  the  provisions  of  the  said 

policy,  to  wit.  No ,  as  required  by  the  said  defendant : 

that  more  than  sixty  (60)  days  have  elapsed  since  the  ascer- 
tainment and  proof  of  loss  as  aforesaid. 

Plaintiff  avers  that  with  the  consent  of  the  said  defendant, 

he  carried  concurrent  insurance  of  ($ ) 

dollars. 

That  by  reason  of  the  premises,  the  defendant,  the , 

of ,  on,  to  wit,  the day  of , 

19.  .,  at,  to  wit,  the  city  of  ,  county  of 

,  state  of  Michigan,  became  and  was  indebted  to 

the  plaintiff, ,  in,  to  wit,  the  sum  of 

($ )    dollars  and  interest,  according  to  the  terms  of  its 

said  contract,  and  in  consideration  thereof,  then  and  there 
promised  to  pay  to  the  said  plaintiff  the  proportional  amount 

of  said  loss,  to  wit,  the  sum  of ($ )  dollars 

and  interest  thereon ;  nevertheless  the  said  defendant  neglected 


ASSUMPSIT  413 

to  pay  the  said  plaintiff  as  aforesaid  although  often  requested 
so  to  do.     (Add  common  counts) 

1012  Stock  of  goods  or  merchandise,  Narr,  (Mich.) 

For  that  whereas,  the  said  defendant  on  the    

day  of  ,  19 . . ,  by  its  policy  of  insurance  num- 
bered   ,  same  being  a  Michigan  standard  policy  issued  at 

its     ,    Michigan,    agency    and    countersigned    by 

,  agent,  did  insure  said  plaintiff  against  loss  or 

damage  by  fire  and  lightning  in  the  sum  of  dol- 
lars upon"^his  stock  of and  all  other  goods,  wares 

and  merchandise  kept  for  sale  by  the  assured  while  located  in. 
the  one  story,  iron  clad  building  and  its  additions  situate  on 

lot    ". of   the   village   of    ,   Michigan, 

which  said  policy  of  insurance  commenced  ,  19 . . , 

and   expired    ,    19...      That   said   plaintiff   paid   a 

premium  of   dollars  for  said  insurance. 

That  afterwards,  on  to  wit,   ,  19.  .,  while 

said  policy  was  in  full  force  and  effect,  said  plaintiff  suffered 
a  loss  by  'fire  which  destroyed  and  damaged  the  property  cov- 
ered by  said,  and  insured  against  loss  and  damage  by  fire  and 
lightning  by  said  policy  of  insurance,  and  being  the  prop- 
erty of  said  plaintiff,  said  loss  and  damage  being  in  the 
sum  of,  to  wit,  dollars.  That  said  plaintiff  fur- 
nished proper  proofs  of  loss  to  said  defendant  That  said 
defendant's  proportion  of  said  loss  and  damage  which  it  should 

have  paid  to  this  plaintiff  was,  to  wit,  the  sum  of 

dollars,  according  to  the  terms  of  its  said  policy  of  insurance, 
and  under  and  by  virtue  of  its  promises  therein  made. 

Yet,  etc. 


For  that  whereas,  the  said  defendant  heretofore  to  wit,  on 
the day  of ,  19. .,  at  the  vil- 
lage of ,  in  said  state  of  Michigan,  on  application 

of  said   ,  made  and  delivered  a  certain  policy  of 

insurance  in  writing  and  bearing  date  the  said 

day  of ,  19 . . ,  whereby  said  defendant,  in 

consideration  of  the  sum  of dollars  ($ .  . ) ,  in 

premium,  in  hand  paid  by  the  said  plaintiff  to  the  said  defend- 
ant, or  its  duly  authorized  agent,  the  receipt  whereof  was  thereby 

acknowledged,  did  insure  the  said  plaintiff,  the  said , 

against  loss  or  damage  by  fire  to  the  amount  of  

dollars,  as  follows,  to  wit,  dollars  on  his  stock  of 

merchandise,    consisting  principally   of    ,    and   all 

other  goods,  wares  and  merchandise  not  more  hazardous  kept 
for  sale  by  the  assured  not  specified  in  the  foregoing,  while  con- 
tained in  the  frame,  shingle-roof  building  and  adjoining  and 
connecting  additions  thereto  while  occupied  as  a 


414  ANNOTATED  FORMS   OF   PLEADING   AND  PRACTICE 

and  dwelling,  and  situated  on  the of  block , 

north   side   of    street,    ]\Iiehigan ; 

dollars  on    furniture  and  fixtures 

while  contained  in  said  building,  including  the  iron  safe  and 

cash  register;  and   dollars  on  his  household  and 

kitchen  furniture,  useful  and  ornamental,  beds,  bedding,  linen, 
family  wearing  apparel,  plated  ware,  printed  books,  (mirrors, 
pictures,  paintings,  engraving  and  their  frames,  jewelry  in  use, 
value  claimed  not  to  exceed  cost),  crockery,  glass  and  china- 
ware,  pianoforte,  sewing  machine,  fuel  and  family  stores,  all 
contained  in  said  building. 

And  said  defendant,  for  the  consideration  aforesaid,  did  in 
and  by  the  said  policy,  promise  and  agree  to  make  good  and 

satisfy  unto  the  said" ,  all  such  loss  or  damage, 

not  exceeding  in  amount  the  sum  of   dollars,  as 

should  happen  by  fire  to  the  property  therein  and  herein  above 

specified,  on  the   day  of  , 

19. .  at  noon  to  and  until  the day  of , 

19.  .,  at  noon,  the  said  loss  and  damage  to  be  estimated  accord- 
ing to  the  true  and  actual  value  of  the  property  at  the  time 
such  loss  or  damage  should  happen,  and  to  be  paid  within  sixty 
days  after  notice  and  proof  thereof ;  and  which  said  policy  of 
insurance  so  delivered  by  said  defendant  to  said  plaintiff  was 
destroyed  by  fire  at  the  time  of  the  loss  by  fire  of  said  property 
above  "described  at  the  time  hereinafter  mentioned. 

The  said  plaintiff  avers  that  at  the  time  of  the  making  of  the 
said  policy  of  insurance,  as  aforesaid,  and  from  thence  until 
the  loss  and  damage  hereinafter  mentioned,  he  had  an  interest 
in  the  said  insured  premises  and  property  to  a  large  amount, 
to  wit,  to  the  amount  of  all  the  money  by  him  insured  thereon, 

and    that    afterwards,    to    wit,    on   the    day    of 

'....,  19.  .,  the  said  personal  property,  goods 

and  chattels  above  mentioned,  being  the  said  insured  property, 
the  property  in  said  policy  of  insurance  mentioned,  were  burned, 
consumed  and  destroyed  by  fire,  which  did  not  happen  or  take 
place  by  means  of  any  invasion,  insurrection,  riot,  or  civil  com- 
motion, or  of  any  military  or  usurp  power;  whereby  the  plain- 
tiff sustained  damage  to  a  large  amount,  to  wit,  the  amount  of 
money  thereon  assured. 

And  the  said  plaintiff  further  avers  that  by  the  terms  of  said 
policy  of  insurance  above  mentioned,  other  concurrent  insur- 
ance of  said  insured  property  was  permitted,  and  that  the  prop- 
erty in  said  policy  mentioned,  at  the  time  of  said  fire,  (was  not  in- 
sured in  any  other  office  or  company  than  defendant's),  except 
as  permitted  by  said  defendant 's  policy  of  insurance ;  but  that 
it  was  insured,  as  permitted  by  said  policy  of  insurance,  for  the 

sura   of    dollars   in   the    company, 

,  of   at  the  time  of  said  fire ;   (that 

said  insured  property  was  not  insured  at  the  time  of  the  mak- 


ASSUMPSIT  415 

ing  of  said  defendant's  policy  in  any  other  office  or  company 
than  the  defendant's.) 

The  said  plaintiff  further  avers  that  the  said  building,  in 
the  said  policy  mentioned,  was  not  at  any  time  after  the  mak- 
ing thereof,  and  during  the  continuation  thereof,  appropriated, 
applied  or  used  to  or  for  the  purpose  of  carrying  on  or  exer- 
cising therein  any  trade,  business  or  vocation  denominated  haz- 
ardous or  extra  hazardous,  or  specified  in  special  rates  required 
by  said  defendant,  or  for  the  purpose  of  storing  therein  any 
of  the  articles,  goods  or  merchandise  in  the  said  rates  denom- 
inated as  hazardous  or  extra-hazardous,  and  mentioned  in  the 
memoranda  of  special  rates  unless  otherwise  specially  provided 
for  in  said  policy. 

And  the  plaintiff  further  avers  that  he  forthwith,  after  the 
said  loss,  gave  notice  thereof  to  defendant,  and  as  soon  there- 
after as  possible,  to  wit,  on  the day  of , 

19 .  . ,  by  mail  from  the  city  of ,  in  said 

state  of  Michigan,  to  the  said  defendant  in  the  city  of , 

in  the  state  of  Illinois,  and  by  it  then  and  there  duly  received 
particular  account  of  his  loss  and  damage  as  the  nature  of  the 
case  would  admit,  signed  by  the  plaintiff  and  by  him  sworn 
to;  that  said  account  was  in  all  respects  just  and  true,  and 
showing  in  said  account  the  value  of  the  property  insured, 
and  in  what  manner  the  building  of  which  the  same  was  con- 
tained was  occupied  at  the  time  of  loss,  the  name  of  the  per- 
son having  charge  thereof  and  residing  therein,  and  when  and 
how  the  said  fire  orig-inated,  so  far  as  the  affiant  knew  or 
believed,  and  his  interest  in  the  property  insured  at  the  time 
of  the  los^  and  damage  aforesaid;  that  annexed  to  the  said 
account  then  and  there  delivered  was  a  certificate  under  the 
hand  and  seal  of  a  notary  public  unconcerned  in  said  loss,  therein 
stating  that  he  had  examined  the  circumstances  attending  such 
fire,  and  loss  and  damage  alleged  and  that  he  verily  believed 
that  the  said  insured  had  honestly  sustained  loss  and  damage 
on  the  said  insured  property  to  the  amount  claimed  in  said 

affidavit,   the  same   being  at   least   the  sum   of    

dollars. 

The  said  plaintiff  further  avers,  that  although  he  has  in  all 
things  observed,  performed  and  fulfilled  all  and  singular  the 
matters  and  things  which  on  his  part  were  to  be  observed,  per- 
formed and  fulfilled  according  to  the  form  and  effect  of  the 
policy  of  insurance,  and  although  he  has  sustained  loss  and 
damage  on  occasion  of  said  fire  to  a  large  amount,  to  wit,  the 

amount  of dollars,  as  aforesaid,  yet  the  defendant 

has  not  paid  to  the  plaintiff  the  said  sum  of  money,  so  by  the 
defendant  assured,  as  aforesaid,  and  by  the  plaintiff  lost,  as 
aforesaid,  or  repaired  or  reimbursed  for  said  loss  sustained  by 
said  fire,  aforesaid,  although  often  request  so  to  do,  or  any  part 
thereof,  and  the  said  loss,  and  every  part  thereof  still  remains 
wholly  unpaid  and  in  arrear,  contrary  to  the  form  and  effect 


416  ANNOTATED   FORMS   OF    PLEADING   AND    PRACTICE 

of  said  policy  of  insurance,  and  to  the  damage  of  said  plain- 
tiff in  the  sum  of dollars ;  and  therefore  he  brings 

suit,  etc. 

(Virginia) 

For  this,  to  Ant,  that,  heretofore,  to  wit,  on  the 

day  of   ,   19..,   the  said  defendant  caused  to  be 

made  a  certain  policy  of  assurance  in  writing,  purporting 
thereby  and  containing  therein,  that  in   consideration  of  the 

sum  of dollars  and cents,  to  it  paid 

by  the  said  plaintiffs,  the  receipt  whereof  the  said  defendant 
thereby  acknowledged,  and  the  agreement  on  the  part  of  the 
said  plaintiffs  to  pay  all  assessments,  which  might  equitably 
and  ratably  be  levied  upon  them  by  the  said  defendant,  the 
said  defendant  undertook  and  promised  the  said  plaintiffs  that 
it,  the  said  defendant,  would  insure  according  to  the  provisions 
and  plans  of  hazardous  risks,  known  as  class  ....  in  the  said 
defendant  association,  the  said  plaintiffs,  against  loss  or  dam- 
age by  fire  or  lightning,  to  the  amount  of dollars, 

and  would  make  good  unto  the  said  plaintiffs  any  such  loss  or 
damage  as  should  happen  by  fire,  not  exceeding  the  said  last 

named  amount  of dollars,  for  the  term  of 

years  from  the    day  of    ,   19 . . ,   at 

noon,  until  the    day  of . ,   19 .  . ,  at 

noon,  on  certain  premises,  the  property  of  the  said  plaintiffs, 
in  the  said  policy  described  as  "  JMerchandise  in  frame  store 

,  $ situated  at ,  

county,  Virginia;"  the  said  loss  or  damage  to  be  estimated 
according  to  the  actual  cash  value  of  the  said  property  at  the 
time  the  same  shall  happen,  and  to  be  paid  by  the  said  defend- 
ant within  sixty  days  after  due  notice  and  proof  thereof,  made 
by  the  said  plaintiffs  in  conformity  to  the  conditions  of  the 
said  policy,  and  the  amount  to  be  paid  should  have  been  deter- 
mined upon,  unless  the  said  defendant  should  have  given  notice 
of  its  intention  to  repair  or  replace  the  damaged  property ;  and 
in  the  said  policy  sundry  provisos,  conditions,  prohibitions  and 
stipulations  were  and  are  contained  and  thereto  annexed  as  by 
the  original  policy,  which  is  filed  herewith,  will  more  fully  and 
at  large  appear. 

And  the  said  plaintiffs  say  that  before  and  at  the  time  of 
making  the  said  policy  of  assurance  by  the  said  defendant,  and 

continuously  from  that  time  until  the    day  of 

,  19 . . ,  the  said  plaintiffs  were  interested  in  the 

insured  property,  in  said  policy  mentioned,  and  described  as 

aforesaid,  to  a  large  amount,  to  wit,  the  amount  of 

dollars,  but  that  on  the  aforesaid day  of , 

19 .  . ,  the  said ,  one  of  the  plaintiffs,  and  a  partner 

in  the  aforesaid  firm  of ,  which  was  composed  of 

the  said and ,  sold  his  interest  in  the  prop- 


ASSUMPSIT  417 

erty  mentioned  and  described  in  the  policy  aforesaid,  and  con- 
sisting of  one  stock  of  general  merchandise,  located  at , 

in   county,  Virginia,  and  delivered  the  aforesaid 

policy  of  insurance  to  the  said    ,   the  remaining 

partner  in  the  said  firm  of    ,   who  at  that  time 

became  the  sole  owner  of  the  aforesaid  property,  and  has  been 
the  sole  owner,  and  in  sole  possession  thereof,  continuously, 
since,  and  is  now;  and  the  said  stock  of  merchandise,  in  the 

said    policy    mentioned,     and     located    at     in 

county,    Virginia,   afterwards   and  between   the 

day   of    ,   19 . . ,   at    o  'clock 

noon,   and  the    day   of    ,   19 . . ,    at 

o  'clock  noon,  to  wit,  on  the day  of , 

19 . . ,  was  burned  up,  and  consumed  and  destroyed  by  fire,  and 
damage  and  loss  was  thereby  occasioned  to  the  said  plaintiffs, 

to   the   amount   of    dollars,   in   such   manner,    and 

under  such  circumstances  as  to  come  within  the  stipulation, 
promise  and  undertaking  aforesaid  of  the  said  defendant  in 
the  said  policy  contained,  and  to  render  liable  and  oblige  the 
said   defendant   to   insure   the   said   plaintiffs   against   loss   or 

damage  by  fire,  to  the  amount  of    dollars,  and 

to  make  good  to  the  said  plaintiffs  any  such  loss  or  damage 
as  should  happen  by  fire,  not  exceeding  the  said  last  mentioned 

sum   of    dollars   on   the   property   aforesaid,    in 

the  said  policy  described,  and  thereby  intended  to  be  insured; 
of  which  said  burning  and  destruction  by  fire  and  of  the  loss 
and  damage  aforesaid  thereby  occasioned  to  the  said  plaintiffs, 

to  wit,  to  the  amount  of  dollars,  due  notice  and 

proof   was   afterwards,   to   wit,   on   the    day  of 

,  19.  .,  made  by  the  plaintiff  to  the  said  defendant, 

and  was  received  at  the  office  of  the  said  defendant  in  conformity 
to  the  conditions  of  the  said  policy.  And  the  said  plaintiffs  fur- 
ther say  that  they  have  performed,  fulfilled,  observed  and  com- 
plied with  each  and  all  of  the  conditions,  provisos  and  stipula- 
tions of  the  said  policy  on  his  part  and  behalf  to  be  performed, 
fulfilled,  observed  and  complied  with,  and  has  violated  none  of 
its  prohibitions,  according  to  the  form  and  effect,  true  intent 
and  meaning  of  the  said  policy. 

Yet,  the  said  plaintiffs  say  that  although  sixty  days  have 
elapsed  since  due  notice  and  proof  as  aforesaid  was  made  to 
the  said  defendant,  as  aforesaid,  of  the  said  burning  and  de- 
struction by  fire,  and  of  the  loss  and  damage,  aforesaid,  thereby 
occasioned  to  the  said  plaintiffs,  the  said  defendant  has  not 
paid  nor  made  good  to  the  said  plaintiffs  the  said  loss  and  dam- 
age of dollars,  or  any  part  thereof,  but  the 

same  and  every  part  thereof  are  wholly  unpaid  and  unsatisfied 
to  them,  contrary  to  the  force  and  effect  of  the  said  policy. 

Wherefore  the  said  plaintiffs  say  that  the  said  defendant, 
although  often  requested,  hath  not  kept  with  the  said  plaintiffs 
the  agreement  aforesaid,  contained  in  the  said  policy,  made 


418  ANNOTATED  FORMS  OF  PLEADING   AND  PRACTICE 

between  it  and  the  said  plaintiffs,  in  that  behalf  as  aforesaid, 
but  that  the  said  defendant  hath  l^roken  the  same,  and  to  keep 
the  same  with  the  said  plaintiffs  hath  hitherto  wholly  refused, 
and   still    doth   refuse,    to   the    damage    of    the    said   plaintiffs 

dollars,  which  said  sum  of  money  in  damages  is 

the  relief  here  prayed  for. 

And  therefore  they  institute  this  action  of  trespass  on  the 
case  in  assumpsit. 


1013  Forfeiture  of  contract,  wrongful,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the    

day  of ,  1 .  . , . ,  at,  to  wit,  the  county  afore- 
said, the  defendant  was  a  corporation  organized  and  existing 

under  and  by  virtue  of  the  laws  of  the  state  of , 

and  as  such  was  engaged  in  the  work  of  channeling  or  excavat- 
ing a  certain  drainage  canal  in  said  state  of ,  and 

thereupon  and  on  said  first  mentioned  date  entered  into  a  cer- 
tain contract  or  agreement  with  the  plaintiff  for  the  channel- 
ing or  excavating  of  that  certain  portion  of  said  drainage  canal 
known  as,  to  wit,  section ,  which  said  contract  or  agree- 
ment was  in  writing  and  was  in  words  and  figures  as  follows, 
to  wit:  (Insert  copy  of  proposal,  contract,  specifications  and 
bond). 

And  the  plaintiff  alleges  that  after  the  execution  of  said  con- 
tract hereinbefore  mentioned  between  the  parties  hereto  he, 
the  plaintiff,  entered  upon  the  performance  of  the  said  contract 
and  was  carefully  performing  and  complying  with  each  and 
every  requirement  imposed  upon  him  by  the  terms  and  condi- 
tions of  said  contract  until  thereafter,  and  on  the 

day  of ,  19 .  . ,  when  the  said  defendant,  by 

its  officers  and  agents,  wrongfully,  improperly  and  erroneously, 
as  hereinafter  set  forth,  declared  the  said  contract  forfeited  and 
thereby  prevented  the  plaintiff  from  carrying  on  the  w^ork  con- 
templated by  said  contract,  and  has  ever  since  kept  and  pre- 
vented the  plaintiff  from  performing  and  carrying  on  said 
work. 

And  the  plaintiff  further  alleges  that,  the  pretended  forfeiture 
of  said  contract  by  the  defendant  was  improper,  erroneous  and 
false,  and  that  the  said  defendant  had  no  authority  to  declare 
the  same  for  the  reason  that  the  plaintiff  was  complying  in  all 
things  with  the  requirements  imposed  upon  him  by  the  said 
contract,  but  that  the  defendant,  by  its  officers  and  agents  in 
its  behalf,  based  said  pretended  forfeiture  of  said  contract  upon 
a  false  and  erroneous  estimate  of  the  amount  of  work  and  exca- 
vation to  be  done  and  made  by  said  plaintiff  under  said  contract, 
in  that  it  demanded  and  required  by  said  estimate  that  the  plain- 
tiff should  excavate  a  quantity  of  rock,  glacial  drift,  earth  and 


ASSUMPSIT  419 

other  material  which  exceeded  the  requirements  of  said  con- 
tract in  the  sum  of,  to  Avit, per  cent ;  and  said  defend- 
ant, by  its  officers  and  agents,  further  based  said  pretended  for- 
feiture of  said  contract  upon  a  false,  improper  and  wrongful 
method  of  computing  the  rate  of  progress  which  was  to  be  made 
by  plaintiff  in  performing  the  work  under  said  contract,  in  this, 
that  the  said  defendant  ascertained  the  rate  of  progress  which 
should  be  made  by  plaintiff  by  dividing  the  total  amount  of 
money  which  was  to  be  paid  the  plaintiff  for  the  work  to  be 
performed  under  said  contract  by  the  total  amount  of  months 
in  the  period  in  which  said  work  was  to  be  performed,  although, 
as  the  plaintiff  alleges,  the  only  true  and  proper  method  of  esti- 
mating the  said  rate  of  progress  under  this  contract  was  to 
determine  the  time  needful  for  the  execution  of  the  several  in- 
dependent parts  of  the  work  in  a  proper  and  economical  man- 
ner, that  is  to  say,  the  number  of  months  of  work,  and  to  di- 
vide said  number  of  months  so  ascertained  by  the  number  of 
months  allotted  for  the  doing  of  the  whole  work.  And  the 
defendant,  by  its  officers  and  agents,  further  based  said  pre- 
tended forfeiture  upon  its  decision  that  the  plaintiff  was  required 

to   commence  the  said   work  upon   the    day  of 

,  19.  .,  although,  as  the  plaintiff  alleges,  the  true 

and  only  proper  date  to  be  taken  as  the  date  of  commencing 

said  work  under  the  terms  of  said  contract  was  the 

day  of ,  19 .  . ,  whereby,  and  by  means  of  the 

premises,  the  plaintiff  alleges  the  said  defendant  wrongfully  and 
improperly  declared  said  contract  forfeited,  and  wrongfully 
and  improperly  kept  and  prevented  the  plaintiff  from  com- 
pleting said  work  under  the  terms  and  conditions  of  said  con- 
tract. 

And  the  plaintiff  further  alleges  that  he  claims  damages  for 
the  reason  that  he  was  obliged  to  and  did  lay  out  and  expend 
large  sums  of  money  in  the  preparation  and  prosecution  of  such 
work,  and  otherwise  in  and  about  the  doing  of  what  was  neces- 
sary and  proper  to  be  done  under  said  contract,  and  for  the 
loss  of  great  gains  and  profits  which  he  would  have  received 
and  made  except  for  such  wrongful  forfeiture  and  breach  of 
contract  by  defendant  as  aforesaid,  that  is  to  say,  that  he  had 
the  means  and  ability  to  perform,  and  was  performing,  the 
work  demanded  of  him  by  said  contract,  and  was  thereby  able 
and  was  making  a  good  profit  out  of  said  work,  to  wit,  a  profit 

of,  to  mt,    cents  on  each  cubic  yard  of  glacial 

drift  so  excavated  and  removed  by  him,  and  a  profit  of,  to  wit, 
cents  on  each  cubic  yard  of  solid  rock  so  exca- 
vated and  removed  by  him,  and  a  profit  of,  to  wit, 

cents  on  each  cubic  yard  of  dry  rubble  masonry  so  built  by 
him. 

And  so  the  plaintiff  alleges  by  means  of  the  premises  afore- 
said he  has  been  deprived  by  the  defendant  of  great  gains  and 
profits,  amounting  to  a  large  sum  of  money,  to  wit, 


420  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

dollars,  which  he  otherwise  might  and  would  have  made  had 
he  been  permitted  by  the  defendant  to  complete  and  perform 
the  terms  and  conditions  imposed  upon  him  by  said  contract. 
(To  the  damage,  etc.) 

1014  Gaming,  action 

Assumpsit  lies  under  the  Gaming  act  of  Illinois  to  recover 
money,  goods,  or  other  valual)le  things,  lost,  paid,  or  delivered 
to  the  winner  or  winners  at  gaming.^** 

1015  Grain  transfer  contract,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the day 

of ,  11).  .,  the  said  plaintitf  and  the  said 

defendant,  for  a  valuable  consideration,  entered  into  a  certain 
contract  in  writing  in  the  words  and  figures  following:  (In- 
sert contract  in  hacc  verba.) 

And  said  plaintitf  further  avers  that  on,  to  wit,  the 

day  of   ,    .  . .  .,  the  said  plaintiff  assigned  all  his 

interest  in  said  contract  unto  the  firm  of  R,  which  said  firm 
was  composed  of  said  plaintiff  A  B,  and  of  one  M,  which  said 
assignment  was  ratified  and  confirmed  by  said  defendant. 

And  plaintiff  further  avers  that  in  consideration  of  the  proin- 
ises  in  said  contract  contained  on  behalf  of  said  defendant,  said 

firm  of  R,  to  wit,  on  the day  of , , 

with  the  consent  and  authority  of  said  defendant,  commenced 
to  erect  and  build  a  Grain  Transfer  House  and  Hopper  Scales, 
and  all  the  machinery  pertaining  thereto,  as  provided  for  in 
said  agreement,   on  the  land  described  in  said  agreement,  to 

wit,  in  said county,  for  the  purpose  of  handling, 

weighing  and  transferring  in  bulk  all  the  grain,  mill  feed  and 
seeds  which  should  be  transferred  from  the  cars  of  western  and 

other  connecting  railroad  lines,  to  wit,  at county 

aforesaid,  to  the  cars  used  by  said  defendant  for  transportation 
of  such  grain,  mill  feed  and  seeds  over  its  railway  to  points  east 

of   in  said   county,  as  provided  in 

said  agreement  with  said  railway  company,  which  said  Transfer 
House  and  Hopper  Scales,  with  all  attachments  and  machinery 
adequate  for  the  purpose  of  weighing  and  transferring  all  grain, 
mill  feed  and  seeds  which  could  or  should  be  presented  for 
transfer   by   said   defendant,   were   completed,   to   wit,   on  the 

of and  said  R,  by  reason 

of  the  consideration  and  promises  aforesaid  on  the  part  of  said 
defendant,  and  wdth  the  consent,  authority  and  ratification  of 
said  defendant,  did  thereupon  enter  upon  the  business  of  trans- 

58  See,  132,  c.  38,  Kurd's  Statute 
1909. 


ASSUMPSIT 


421 


ferring  all  such  grain,  mill  feed  and  seeds  from  car  to  ear,  and 
weighing  the  same,  as  provided  for  in  said  agreement. 

And  said  plaintiff  further  avers  that  said  R,  could  not  con- 
veniently transfer  mill  feed  through  its  said  Transfer  House, 
and  the  right  to  have  such  transfer  of  such  mill  feed  and  the 
weighing  thereof  was  waived  by  said  defendant. 

And  plaintiff  further  avers  that  said  R,  to  wit,  on  the 
day  of ,  .  . . . ,  entered  upon  the  per- 
formance of  the  duties  so  imposed  upon  it  by  said  contract, 
with  the  consent  and  authority  of  said  defendant,  and  weighed 
and  transferred  all  the  grain  and  seeds  presented  to  it  at  such 
transfer  house  to  be  transferred  and  weighed,  and  so  continued 
to  weigh  and  transfer  all  such  grain  and  seeds,  until,  to  wit, 
the day  of , ,  and  kept  and  per- 
formed all  its  promises  and  obligations,  and  the  promises  and 
obligations  of  said  plaintiff*  individually  under  said  contract. 

And  plaintiff  further  avers  that  although  said  firm  of  R, 
kept  and  performed  all  things  in  said  agreement  contained  on 
its  part  or  on  the  part  of  said  plaintiff'  to  be  kept  and  performed, 
nevertheless,  the  said  defendant,  though  often  thereto  requested, 
has  not  kept  and  performed  its  said  promises  on  its  behalf  to 
be  kept  and  performed. 

And   said    plaintiff'    avers    that    on,    to    wit,    , 

,    the    said    defendant,    to    wit,    at 

county  aforesaid,  abandoned  the  said  contract  on  its  part  to  be 
performed,  and  neglected  and  refused  to  perform  the  same,  and 
also  refused,  without  any  reasonable  or  just  cause,  to  be  bound 
by  the  same. 

And  said  plaintiff  avers  that  after  the  abandonment  ot  said 
contract  and  refusal  to  perform  the  same  by  said  defendant, 
he,  the  said  :\I,  departed  this  life,  on,  to  wit, , 

19...  - 

And  said  plaintiff  further  avers  that  said and 

the  said  plaintiff  have  always  been  ready  and  willing  and  have 
offered  the  defendant  to  continue  in  the  said  service  and  em- 
ployment of  defendant  in  weighing  and  transferring  said  grain 
and  seeds  as  aforesaid  as  provided  in  said  contract,  and  to  per- 
form all  the  duties  required  by  him  or  it  to  be  performed 
according  to  the  terms  of  said  contract. 

And  the  plaintiff  further  avers  that  the  weights  so  obtained 
by  it  in  weighing  and  transferring  such  grain  and  seeds  con- 
tracted for  to  be  transferred  through  said Transfer 

House  as  aforesaid,  are  and  were  of  the  value  of  to  wit, 

per  car.  And  he  avers  that  the  number  of  cars  annually  trans- 
ferred on  the  track  to  the  cars  of  said  defendant  company 

amount,  to  wit,  ($ )  dollars. 

And  he  further  avers  that,  to  wit,    ( ) 

cars  per  annum  of  grain  and  seeds  will  continue  to  be  trans- 
ferred on  said  track  to  the  cars  of  said  defendant  for  and  dur- 


422  ANNOTATED  FORMS  OF  PLEADING   AND  PRACTICE 

ing  the  period  of  time  provided  in  said  contract,  viz.,  up  to, 
to  wit,  , 

And  the  phxiutiff  further  avers  that  the  saving  to  said  de- 
fendant company  in  the  switching,  weigliing  and  transfer  of 
such  grain  anil  seeds  in  said  agreement  referred  to  through 
the  methods  and  devices  of  said  second  party,  as  set  out  in 
said  contract  over  and  above  the  actual  cost  of  doing  the  same 
work  under  the  ways  and  methods  used  by  said  lirst  party  at 
the  time  of  said  contract  amounts  annually  to  the  sum  of,  to  wit, 
($ )   dollars. 

And  the  plaintiff  further  avers  that  he  and  the  firm  of  R 
were  obliged  to,  and  did  lay  out  and  expend  large  sums  of 
money  for  work,  labor  and  material  necessary  to  build  and 
equip  said  Transfer  House,  according  to  the  terms  of  said  con- 
tract; and  that  said  Transfer  House  was  valual)le  solely  for 
the  purposes  contemplated  by  said  contract  of  transferring 
grain  and  seeds  from  car  to  car,  and  that  in  conseciuence  of 
said  abandonment  and  refusal  of  said  defendant  company  to 
be  bound  by  the  terms  of  its  contract,  said  Transfer  House  has 
become  of  no  value  to  the  plaintiff  and  the  plaintiff  says  that 

he  has  thereby  suffered  damage  to  the  extent  of  

($ )  dollars. 

And  the  plaintiff  further  avers  that  there  is  now  due  to  him 
from  said  defendant  company,  on  account  of  such  non-perform- 
ance of  said  contract  by  it,  a  large  sum  of  money,  to  wit,  the 

sum  of   ($ )    dollars,  being  the  amount  of 

damage  to  and  amount  due  said  plaintiff  by  reason  of  the  breach 
of  said  contract  from  the  date  of  said  defendant's  wrongful 
refusal  to  perform  said  contract  on  its  part  to  be  performed, 
as  aforesaid. 

And  the  plaintiff  further  avers  that  he  claims  special  dam- 
ages for  loss  of  profits,  which  the  firm  of  R,  or  he  as  survivor, 
would  have  received,  except  for  such  breach  of  contract,  from 

the  receivers  and  shippers  of  grain  and  seed  at  ; 

and  he  avers  that  said  R  or  he  as  its  representative,  had  a 
contract  with  the  receivers  and  shippers  of  grain  and  seed  at 

for  the  purchase  of  the  weights  of  grain  and  seed, 

which  said  firm,  or  he  as  receiver  obtained  or  would  have 
obtained  in  transferring  grain  and  seed  from  the  cars  of  west- 
ern railways  having  their  eastern  termini  at   ,  to 

the  cars  of  said  defendant  railway  company,  to  wit,  at 

county  aforesaid.  And  he  avers  that  except  for  the  breach, 
of  said  contract  by  said  defendant,  said  firm,  or  he  as  survivor, 

would  have  received  large   profits,   to   wit,    per 

car,  from  such  receivers  and  shippers  of  grain  and  seed  at 

for  the  weights,  to  wit,  of  the  cars  of  grain  and 

seed  transferred,  or  which  would  have  been  transferred  by  such 
firm,  or  by  plaintiff  as  survdvor  from  the  cars  of  said  western 
railways  to  the  cars  of  said  defendant  company,  to  wit,  the 


ASSUMPSIT  423 

weights  of  cars  per  annum,  during  the  unex- 
pired term,  of  said  contract,  to  wit,  for years. 

And  plaintiff  further  avei*s  that  he  claims  special  damages 
for  loss  of  profits  which  the  firm  of  R,  or  he  as  survivor  other- 
wise would  have  received,  except  for  such  breach  of  contract, 

from  western  railways  having  their  eastern  termini  at , 

and  he  avers  that  at  the  time  when  said  contract  was  entered 
into  between  him,  the  said  A  B,  and  the  said  defendant  com- 
pany, it  was  known  to  said  defendant,  or  its  chief  executive 
officers,  that  he,  said  A  B,  contemplated  as  a  source  of  profit 
the  sale  of  his  weights  so  obtained  or  to  be  obtained  to  such  westr 
ern  railways,  and  said  plaintiff  avers  that  except  for  the  breach 
of  said  contract  of  said  defendant,  said  R,  or  he  as  survivor 

would  have  received  large  profits,  to  wit, per  car 

from  such  western  railways,  for  the  weights,  to  wit,  of  all  cars 
of  grain  and  seed  transferred  or  which  would  have  been  trans- 
ferred by  said  firm,  or  by  said  plaintiff  as  survivor,  from  the 
cars  of  such  western  railways  to  the  cars  of  said  defendant 

railway  company,  to  wit,  the  weights  of per  annum, 

during  the  unexpired  term  of  said  contract,  to  wit,  for 

years. 

And  the  plaintiff  further  avers  that  although  he  and  the 
said  firm  of  K  have  kept  and  performed  all  things  in  the  said 
contract  contained  on  his  or  its  part  to  be  kept  and  performed, 
nevertheless  the  defendant  railway  company,  though  often  re- 
quested, has  not  performed  said  contract,  and  refuses  so  to  do, 
to  the  damage,  etc. 

1016  Guaranty  of  account,  Narr.  (Miss.) 

That  on  and  before day  of  , 

19.  . ,  the  said  defendant was  engaged  in  the 

private  banking  business  in   of ,  in 

the  state  of   ,  under  the  name  and  style  of  the 

bank  of  That  on  and  before  the  day  and  date 

aforesaid,  there  appeared  and  was  on  the  books  of  account  of 

said  bank  of   a  certain  account  or  statement  of 

debits  and  credits  against  one  who  had  thereto- 
fore been  doing  business  with  the  said  bank  of   

which  said  account,  or  statement  of  debits  and  credits,  on  the 

day    and    date    aforesaid,    to    wit,    the    day    of 

,  19 . . ,  showed  that  the  said 

was  indebted  to  the  said  bank  of   in  the  total 

sum  of dollars,  with  interest  thereon  at  the  rate 

of per  cent  per  annum  from  and  after  the 

day  of  ,  19 . .     A  true  and  correct  copy  of 

which   said   statement   of   account  between   the   said   bank   of 

and  the   said    is  hereto   attached, 

marked  exhibit  "A"  and  made  a  part  of  this  declaration. 

That  on  the  day  and  date  aforesaid,  to  wit,  the 


424  ANNOTATED  FORMS  OF   PLEADING  AND   PRACTICE 

day  of ,  19 . . ,  the  said for  and 

iu  consideration  of  the  sum  of dollars  to  him  then  and 

there  paid,  ditl  sell,  assi^'ii,  and  transfer  unto  the  plaintilVs  and 
one  jointly  all  of  the  assets  of  every  kind  and  de- 
scription belonging  to  the  said  baidc  of including 

the  account  against as  aforesaid,  a)id  then  and 

there  turned  over  and  delivered  to  plaintilTs  and  the  said ^ 

all  the  books,  accounts,  and  choses  in  action,  of  said  bank  of 

including  the  account  herein  iu  controversy.     A 

true  and  correct  copy  of  which  assignment  and  transfer  is 
hereto  attaciied,  iiiarUi'd  exhibit  "B"  and  nmde  a  part  of  this 
declaration. 

That  by  virtue  of  said  a.ssignment  and  transfer  of  the  books, 

assets  and  clioses  in  action  of  said   bank  of   to 

plaintiffs    and    the    said     ,    the    said    defendant 

did  then  and  there  on,  to  wit,  the . 

day  of ,  19. .,  impliedly  warrant  the  plain- 
tiffs and  the  said  that  the  account  here  in  con- 
troversy, marked  exhibit  "A,"  was  a  valid  subsisting  ol)liga- 

tion  in  his  favor  against  the  said    to  the  extent 

showing  thereby,  to  wit,  the  sum  of dollai-s,  with 

interest  thereon  at  the  rate  of per  cent  per  annum 

from  and  after  the day  of , 

19 .  .  . 

That  subsequently,    on,    to    wit,    the    day   of 

1!) .  . ,  the  said did,  for  a  valu- 
able consideration  to  him  in  hand  then  paid,  assign,  set  over 
and  transfer  unto  the  plaintiffs  in  this  action,  his  entire  interest 

in  and  to  the  assets  of  the  said  bank  of including 

the  account  here  in  controvei-sy.  A  copy  of  which  said  transfer 
is  hereunto  attached,  marked  exhibit  "C"  and  hereby  made  a 

part  of  this  declaration.     That  thereafter,  to  wit,  on ... 

day  of ,  19.  ..  the  plaintiff's  herein  insti- 
tuted a  certain  suit  against  the  said  on  the  ac- 
count aforesaid,  in  the  court  of county, 

having  then  and  there  jurisdiction  to  determine  said  contro- 
versy. A  copy  of  the  declaration  or  petition  iu  such  case  is 
hereto  attached  marked  exhibit  "D"  and  made  a  part  hereof. 

That  thereafter,  on,  to  wit,  the day  of , 

19. .,  the  said  defendant filed  his  certain  plea 

or  answer  to  said  declaration,  denying  thereby  any  liability  to 
plaintiffs  on  account  of  the  same  suit  in  the  declaration  or  peti- 
tion aforesaid,  a  copy  of  which  said  plea  or  answer  is  hereto 
attached  marked  exhibit  ''E"  and  made  a  part  of  this  declara- 
tion. 

That  plaintiffs   notified   the   defendant   of  the  pendency  of 
the  said  suit  and  that  the  same  was  being  contested  by  the 

said  

That   thereafter   said    court    of    

county,    having  tried   the  issue   joined  between 


ASSUMPSIT  425 

plaintiffs  and  said  ,  then  and  there  having  juris- 
diction so  to  do,  rendered  a  judgment  lor  the  defendant,  in 
and  by  which  said  judgment  it  was  determined  and  adjudged 
that  the  said  claim  was  not  a  valid  subsisting  claim  against  the 
said ,  a  true  and  correct  copy  of  which  said  judg- 
ment is  hereto  attached  and  marked  exhibit  "F"  and  made  a 
part  of  this  declaration. 

Wherefore  plaintiffs  in  this  action  say  that  on,  , 

to  wit,  the  day  of ,  19 .  . , 

the  said  claim  or  account  of  said  bank  of against 

the  said ,  which  was  then  and  there  assigned  and 

transferred  by  the  said  defendant   as  aforesaid, 

was  not  a  valid  subsisting  claim  against  the  said 

,  to  the  amount  shown  thereon,  or  to  any  part,  as 

determined  and  adjudged  by  the  said   court  of 

county ,  and  that  the  said  defend- 
ant's implied  warranty  has  been  breached,  to  the  damage,  etc. 

1017  Guaranty  of  contract,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,   in  consideration 

that  the  phiintiff  would  make  for  the to  wit, 

pictures  at  the  price  of,  to  wit, and  woukl  deliver 

to  the  said  pictures  at  a  certain  time  thereafter, 

to  wit,  on  or  before ,  the  said prom- 
ised to  accept  of  it,  the  plaintiff,  said  pictures  when  the  same 
should  be  so  made  and  delivered  and  to  pay  it  the  said  price 

for  the  said  pictures  in  two  promissory  notes  of  said 

each   for  the  sum  of   ,  payable  on 

and  endoi-sed  by  the  defendant  by  the  name and 

the  defendant  at  the  time  for  the  making  of  said  contract,  in 
writing  guaranteed   the    faithful  performance   and   fulfillment 

of  the  said  contract  by  the    in  consideration  of 

the   promise   of  the  plaintiff  to   make  said   pictures   for  said 

which  said  agreement  between  the  plaintiff  and 

said  .*. '.'.'.' with  the  guarantee  thereof  by  the  defendant 

were  in  the  words  and  figures  as  follows,  to  wit:  (Insert  copy 
of  agreement  and  guarantee). 

And  the  plaintiff  avers  that  it  did  afterwards,  to  wit,  on 

there  made  the  said  pictures  for  the 

and  thereupon  then  and  there  was  ready  and  willing  and  offered 

to  deliver  the  same  to  it,  and  did  deliver  the  same  to  the . 

and  requested  it  to  accept  and  pay  for  the  same  as  aforesaid. 
And  the  plaintiff  avers  that  although  it  has  in  all  respects  com- 
plied with  said  contract  and  made  said  pictures  in  all  respects 
in  accordance  with  said  contract  and  delivered  the  same  within 
the  time  and  at  the  place  mentioned  in  said  contract,  yet  neither 

the nor  the  defendant,  did,  nor  would  then  or  at 

anv  other  time,  pay  the  plaintiff  for  said  pictures  the  price 
aforesaid,  or  any  part  thereof,  or  give  or  deliver  to  the  plain- 


426  ANNOTATED  FORMS  OF  PLEADING  AND  PRACTICE 

tiff  the  aforesaid  notes  of  the   endorsed  by  the 

defendant  as  aforesaid,  but  to  do  so  both  the  said 

and  tile  defendant  have  hitherto  refused  and  still  do  refuse, 
to  the  damage,  etc. 

1018  Guaranty  of  notes,  Narr.  (111.) 

For  that  whereas  on,  to  wit,  the day  of , 

19. .,  the  plaintiff  by  its  salesman,  made  a 

proposition  in  writing  to of in  the 

state  of ,  to  furnish  certain  articles  and  machinery 

in   said   proposition    lueiitioned,    by    the    plaintiff   to    the   said 

,  which  proposition  is  in   the  words  and  figures 

following,  to  wit:    (Set  out  proposition). 

And  plaintiff  avers  that  the  said upon,  to  ^nt, 

the  day  of  ,  VJ. .,  accepted 

the  said  proposition,  and  thereupon  on  the  day  last  aforesaid, 
in  consideration  that  the  plaintiff,  at  the  request  of  the  defend- 
ant, would  approve  the  said  proposition  aforesaid  and  furnish 
the  articles  of  machinery  in  the  said  proi)Ositi()n  mentioned, 
and  would  in  the  manner  and  at  the  time  in  the  said  proposi- 
tion mentioned,  and  would  accept  the  said notes 

therefor  executed  in  conformity  with  said  proposition,  the  said 
defendant,  by  his  agreement  in  writing  then  and  there  made, 
executed  and  delivered  to  the  plaintiff,  promised  the  plaintiff 
to  stand  responsible  for  the  said  notes  so  to  be  executed  by  the 

said ,  as  they  should  nuiture,  if  the  said 

should  fail  to  make  payments  thereon  at  the  time  specified  in 
said  notes  respectively,  for  payment;  which  said  promise  so 
made  to  the  plaintiff,  is  in  writing  and  is  in  the  words  and  fig- 
ures following,  to  wit:     (Set  out  guaranty). 

And  the  plaintiff'  avers  that  thereupon  it,  in  consideration 
of  the  promise  of  the  defendant,  in  his  said  writing  contained, 

afterwards,  to  wit,  on  the   day  of , 

19 .  . ,  at  its  office  in ,  in  the  state  of , 

approved  the  said  proposition,  and  thereupon,  entered  upon  the 
performance  of  the  contract  so  entered  into  by  and  between 
plaintiff  and  said   

Plaintiff'  further  avers  that  on  or  before , 

19.  .  it  furnished  and  shipped  f.  o.  b.  cars  at 

to    at    ,   Michigan.      (Describe   the 

machinery  that  was  shipped)  ;  that  the  common  carrier  refused 

to  ship  said  articles  so  loaded  at ,  as  aforesaid, 

unless  the  freight  thereon  was  prepaid ;  and  that  plaintiff  there- 
upon prepaid  the  freight  thereon,  from to 

Plaintiff  further  avers  that  the  defendant,  well  knowing  that 

the  said  articles  so  shipped  from    as  aforesaid, 

had  not  been  shipped  on  or  before on . 

by  his  instruction  in  writing,  directed  the  shipment  of  said 
articles ;  that  upon  the  arrival  at ,  of  the  articles 


AssuMPf5rr  427 

so   shipped    from    ,    as   aforesaid,   the   defendant 

accepted  said  articles  from  the  common  carrier,  and  thereafter 
paid  the  plaintiff  the  freight  so  prepaid  thereon. 

Plaintitf  further  avers  that  all  of  said  articles  so  furnished 
and  shipped  by  it,  as  aforesaid,  were  constructed  of  good 
material  and  in  a  workmanlike  manner  and  were  so  furnished 
in  good  shipping  order. 

And  plaintiff  avers  that  afterwards,  to  wit,  on  the 

day  of     ,  19. .,  the  said made, 

executed  and   delivered  to  plaintiff,  his   certain 

promissory  notes,  each  bearing  date and  each  for 

the  sum   of    dollars,   payable   to  the   plaintiff 

at ,  and  each  bearing  interest  at  the  rate  of 

per  cent  per  annum,  until  paid,  the  first  due  in   

months  after  date,  and  second  and  third  due,  respectively,  in 

months  after  date;  which  said  notes,  so  executed 

as  aforesaid,  were  submitted  to  the  defendant,  by  the  said 
; and  the  defendant  thereupon  directed  the  sign- 
ing and  delivery  thereof  by  the  said to  the  plain- 
tiff, copies  of  which  notes  are  hereto  attached. 

Plaintiff  further  avers  that  although  the  date  of  maturity 
of  the  first  of  the  said  notes  has  long  since  elapsed,  that  the 

said  has  not  paid  nor  caused  the  same  to  be  paid, 

nor  any  part  thereof,  nor  the  interest  thereon,  nor  any  part 
thereof,  whereof  the  defendant  had  notice;  yet  the  defendant 
has  not  paid,  nor  caused  the  first  of  the  said  notes  nor  any 
part  thereof,  nor  the  interest  thereon,  nor  any  part  thereon, 
to  be  paid  to  the  plaintiff,  but  refuses  so  to  do,  to  the  damage 

of  the  plaintiff  of dollars ;  and  therefore  it  brings 

suit,  ete.^^ 


1019  Guaranty  of  shares  of  stock,  Narr.  (111.) 

For  that  whereas,  a  certain  A  P,  on,  to  wit,  the 

day  of   ,  1....,  at  the  city  of   ,*in 

the  county  of  ,  and  state  of  ,  made 

and  entered  into  and  delivered  to  the  plaintiff  a  certain  agree- 
ment in  writing  and  under  seal,  in  and  by  which  said  agree- 
ment, after  reciting  the  sale  to  the  plaintiff  by  said  A  P  of 

shares  of  the  capital  stock  of  the   

company  for   dollars  cash,  it  was  provided  that 

the  purchase  of  said  stock  by  said  plaintiff  and  the  sale  thereof 
by  said  A  P  was  made  upon  the  condition  that  if  at  any  time 

between    days  after  the  date  of  said  agreement 

in   writing,   to   wit,    ,   1 ,   and    , 

59  Phoenix  Mfg.  Co.  v.  Bogardus, 
231  111    528   (1907). 


428  ANNOTATED   FORMS   OF   PLEADING  AND   PRACTICE 

1 the  said  plaintiff  should  need  the  said  sum  of 

dollars,  and  because  of  said  need  it  should  be  imperative  that 
he,  the  plaintiff,  sell  and  dispose  of  said  shares  of  stock,  then 
the  plaintiff  therein  and  thereby  agreed  that  before  offering 
said  stoek  to  any  other  person  whatsoever  he  would  serve  a 
sixty-day  notice  upon  said  A  P,  re(iuesting  him  to  take  up  all 
of  said  stoek  for  exactly  tlie  same  sum  by  liim  paid  therefor, 

to  wit,   dollars,  and  in  consideration  of  said  sale 

therein  made  by  said  A  1'  to  the  plaintiff',  the  said  A  1*  therein 
and  thereby  expressly  agreed  to  accept  said  notice  and  to  take 
up  within  said  sixty  days  all  of  said  shares  of  stock  and  repay 
to  the  plaintiff  the  said  sum  of ,  ami  the  said  de- 
fendant, in  consideration  thereof,  by  his  certain  agreement  in 
writing,  signed  by  him  and  sealed  with  his  seal,  did  promise 
and  agree  to  and  with  the  said  plaintiff"  that  in  the  event  that 
the  sixty-day  notice  mentioned  in  said  agreement  with  said  A 
P  was  served  upon  said  A  P  and  the  said  A  P  failed  to  take 
up  said  stock  in  said  agreement  mentioned,  then  and  in  that 
case  the  said  C  D  liierein  and  tiiereby  agreed  and  promised  to 
take  up  said  stock  and  pay  the  plaintiff'  therefor  the  sum  of 

And     the     plaintiff'    avers     that     afterward,     to     wit,     the 

day   of    ,   1 ,   he,   the   said 

plaintiff,  was  in  need  of  said    ,  and   because  of 

said  need  it  was  imperative  that  he  sell  and  dispose  of  said 
shares  of  stoek,  and  that  before  oft'ering  said  shares  of  stock 
to  any  other  person  wliatsoever  he,  the  said  plaintiff",  served  a 
sixty-day  notice  upon  the  said  A  P  in  accordance  with  the 
terms  of  said  agreement,  requesting  him,  the  said  A  P,  to  take 
up  said  shares  of  stock  for  exactly  the  same  sum  paid  by  the 

plaintiff  therefor,   to  wit,    ,   and  requesting  said 

A  P  to  repay  to  said  plaintiff  the  said  sum  of  ; 

that  the  said  A  P  then  and  there  accepted  said  notice  by  prom- 
ising the  plaintiff'  to  take  up  all  of  said  shares  of  stock  and 

repay  to  said  plaintiff'  the  said  sum  of    ,  within 

sixty  days  thereafter. 

And  the  plaintiff'  further  avers  that  at  the  time  of  said  notice 
to  said  A  P  and  the  promise  of  said  A  P  to  take  up  said  stock 

and  repay  the  plaintiff  said  sum  of ,  as  aforesaid, 

and  ever'since  that  time,  the  said  plaintiff  was,  and  he  now  is, 
ready,  able  and  willing  to  give  up  and  surrender  the  certificate 
for  the  shares  of  stock  hereinbefore  mentioned  to  the  said  A  P 
or  the  said  defendant  whenever  either  the  said  A  P  or  said 
defendant  should  take  up  said  stock  and  repay  the  plaintiff 

therefor  the  said  sum  of   ;  that  at  the  expiration 

of  said  sixty  days  the  plaintiff  requested  the  said  A  P  to  take 
up  said  shares  of  stock   and   repay   to  him  the  said  sum  of 

according  to  the  terms  of  said  agreement ;  but 

the  said  A  P  did  not  then  or  at  any  other  time  before  or  after- 
ward pay  the  plaintiff  the  said  sum  of dollars,  and 


ASSUMPSIT  429 

did  not  then  or  at  any  other  time  take  up  said  shares  of  capital 
stock,  or  any  portion  thereof.  Thereupon  the  plaintiff  requested 
the  said  defendant  to  take  up  the  said  shares  of  stock  and  pay 

to  the  plaintiff  the  said  sum  of according  to  the 

said  agreement  in  writing  of  said  defendant ;  yet  the  said 
defendant  has  not  taken  up  said  shares  of  stock  and  paid  the 

plaintiff*  said ,  but  refuses  so  to  do,  to  the  damage, 

etc.*^*^ 

1020  Heirs  and  devisees ;  declaration,  requisites 

In  a  creditors'  action  against  heirs  or  devisees  brought  under 
the  statute,  without  joining  the  personal  representative,  the 
declaration  must  set  forth  the  facts  which  authorize  the  bring- 
ing of  the  suit,«i  that  the  personal  property  which  belongs  to 
the  estate  is  insufficient  to  discharge  the  just  demands  against 
it,  that  certain  real  estate  descended  to  the  heirs,'^^  and  either 
that  judgment  had  been  obtained  against  the  personal  repre- 
sentative and  that  there  were  no  assets  in  his  hands  to  satisfy 
it  according  to  statute,  or,  that  the  estate  was  not  administered 
upon  within  one  year  from  the  death  of  the  testator  or  intestate 
as  is  re(iuired  by  statute.*53  The  common  counts  in  assumpsit 
are  insufficient  to  sustain  an  action  against  heirs  or  devisees.^^ 

1021  Indemnity  bond  as  salesman,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  vnt,  on  and  before , 

19.  .,  and  from  thence  hitherto,  the  plaintiff  was  and  is  carry- 
ing on  and  conducting  a  wholesale  grocery  business  in  the  city 

of  ,  county  of   ,  and  state  of 

,  and  in  the  operation,  conduct,  and  management 

of  its  business,  employed  salesmen  to  solicit  sales  of  its  goods, 

and  merchandise ;  and  that,  on,  to  wit,  the day  of 

19 .  . ,  at,  to  wit,  the  eity  of 

in,  to  wit,  the  county  of ,  and  state  of , 

aforesaid,  one  D.  was  employed  by  the  plaintiff  as  traveling 
salesman  for  the  plaintiff  and  otherwise,  and  in  consideration 

of  such  employment,  and  of  the  sum  of   dollars 

($ )  to  the  defendants  in  hand  paid,  the  said  defendants 

on,  to  wit,  the day  of ,  19  •  • , 

at  said  county  and  state,  made,  executed,  and  delivered  to  the 

BO  Wolf    V     Powers,     241     111.     9  63  Hoffman  v.  Wilding,  85  111.  453, 

(1909).  456    (1877);    Sec.    12,    c.    59,    Eev. 

61  Eyan     v.     Jones,    15    111.    1,    6       Stat.    (111.)- 

(1853);  McLean  v.  McBean,  74  111.  64  McLean  v.  McBean,  74  111.  134, 

134,  137   (1874).  137. 

62  Guv  V.  Gericks,  85  111.  428,  430, 
431  (1877). 


430  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

plaintiff. .  their  written  obligation,  substantially  in  words  and 
figures  as  follows:   (Insert  personal  service  bond)  ;  which  bond 

was  then  and  there,  on,  to  wit,  the day  of , 

19. .,  at  the  city  of ,  in  the  said  county  aiid 

state,  executed  and  delivered  to  and  accepted  by  the  said  plain- 
tiff. In  consideration  whereof,  and  relying  upon  the  said  bond 
aforesaid,    the  plaintiff   did    then    and    there,    on,    to   wit,    the 

day  of ,  1'^-  •,  employ  the 

said  D  as  its  traveling  salesman,  and  otherwise,  as  aforesaid, 
and  said  D  continued  and  remained  in  the  employ  of  the  said 

plaintiff  until,  to  wit,  the   day  of   , 

19... 

And  the  plaintiff  avers  that  after  the  making  and  delivery 
of  said  writing  obligatory,  as  aforesaid,  and  before  the  said 

day  of ,  1!'.  .,  and  while  the 

said  D  was  still  so  in  the  employment  of  the  plaintiff  afore- 
said, the  said  D  became  indebted  to  the  plaintiff  in  a  large  sum 

of  money,  to  wit,  in  the  sum  of,  to  wit,   dollars 

($ ),  for  moneys  advanced  by  plaintiff  to  said  D,  and  in  a 

like  amount  for  goods,  wares  and  merchandise  by  the  plaintiff 
sold  and  delivered  to  said  D.  and  in  a  like  sum  for  attorneys' 
fees  incurred  and  paid  by  plaintiiT,  and  in  a  like  sum  for  interest 
on  divers  sums  of  money  during  that  time  furnished  by  the  plain- 
tiff to  said  D,  all  of  which  said  D  has  neglected  to  pay,  although 
often  requested;  by  means  whereof,  and  by  reason  whereof, 
the   defendants   became   liable   to   pay  the  plaintiff,  whenever 

thereunto  demanded,  the  sum  of,  to  wnt,   ,  dollars 

($ )  ;  and  being  so  liable,  then  and  there  at,  to  wit,  the 

county  aforesaid,   promised  to  pay  the  plaintiff  whenever  so 

requested  the  said  sum  of,  to  wit, dollars  ($ )  ; 

yet,  etc. 

1022  Indemnity  bond  to  sheriff,  Narr.  (111.) 

For  that  Avhereas  in  the  year ,  said ,  was 

sheriff  of  the  county  of  ,  in  the  then  territory  of 

,  and  was  performing  the  duties  pertaining  to  his 

said  office,  and  at  the term co-part- 
ners doing  business  as    defendants  herein,  sued 

out  of  the  district  court  of  the judicial  district  of  the 

county  of in  the  said  territory  of , 

a  certain  writ  of  the  people  called  a  writ  of  attachment,  by 

which   said   writ   the  said    ,  sheriff  as   aforesaid, 

was  commanded  to  attach  so  much  of  the  estate,  real  or  personal, 

of co-partners  doing  business  as to 

be  found  in  said  county  as  should  be  of  value  sufficient  to  satisfy 
said  writ;  and  that  afterwards,  by  virtue  of  said  writ,  said 

,  sheriff  as  aforesaid,  then  and  there  seized  certain 

goods  and  chattels  of  the  said for  the  purpose  of 

satisfying  the  claim  of  said  


ASSUMPSIT  431 

And  plaintiff  further  avers  that  after  the  attachment  of  said 

goods  by  the  said ,  sheriff  as  aforesaid,  under  said 

writ  of  attachment  in  said  suit  of against 

one    claimed  to  have  the  right  of  possession  of 

said  property  so  levied  on  as  aforesaid,  by  virtue  of  a  certain 

chattel  mortgage  made,  executed  and  delivered  by  said 

to  said ,  dated ,  upon  and  covering 

said  property  taken  by  said sheriff  as  aforesaid, 

to  secure    the   sum    of    dollars ;    and   that   said 

made  a  demand  upon  said  ,  sheriff 

as  aforesaid,  to  deliver  to  him,  the  said said  goods 

so  levied  upon  by  said   ,  sheriff  as  aforesaid,  as 

the  goods  of   ,  but  said    being  in- 
structed by  the  defendants,   not  to  deliver  said 

goods  to  the  said the  said  defendants,  by  the  name 

of at  the  request  of  said and  accord- 
ing to  the  statute  in  such  case  made  and  provided,  to  protect 

the  said    from  all  damages,   costs,   expense  and 

trouble  of  any  nature  whatsoever  which  he  might  incur  by  the 

holding  of  said  goods  so  levied  on  in  said  case  of 

against after  the  demand  so  made  by  said 

for  said  goods,  executed  and  delivered  to  said   

a  certain  indemnifying  undertaking  as  follows:     (Insert 

copy  of  bond.) 

In  and  by  means  of  which  writing  the  defendants  then  and 
there  faithfully  promised,  undertook  and  agreed  that  they,  the 
said  defendants,  would  at  all  times  and  forever  thereafter  keep 

said harmless  and  indemnified  of,  for  and  against 

said  claim  of  said  and  all  costs,  charges,  trouble 

and  expense  of  any  nature  whatsoever,  to  which  he  might  be 
put  by  reason  of  such  levy  and  sale,  or  either;  and  the  said 

confiding  in  said  promise  and  undertaking  of 

the  defendants,  refused  to  deliver  said  goods  and  chattels  so 

attached   by   him   the  said  sheriff  as    aforesaid, 

under  and  by  virtue  of  said  writ  of  attachment  issued  out  of 

said    district    court    of    the     judicial     district 

of     the     county     of      ,     in     the     territory     of 

,   at  the  suit  of  said    to   the   said 

,  but  retained  the  same  in  his,  the  said 

possession ;  and  thereafter  certain  proceedings  were  had  in  said 
district    court    aforesaid,    whereby    the    attachment    of    said 

against  the  said was  sustained,  and 

the  said  goods  so  levied  upon  by  said   sheriff  as 

aforesaid,  in  said  suit  to  satisfy  the  said  claim  of , 

were  sold  under  the  order  of  said  district  court  of  the 

judicial  district  of   county,  in  said  territory  of 

^ and  the  sum    dollars  was  realized 

by  said sheriff  as  aforesaid  for  said  goods. 

And  that  thereafter  in  the  district  court  of  the 

judicial  district  of  the  county  of ,  in  the  territory 


432  ANNOTATED  FORMS  OF   PLEADING  AND  PRACTICE 

Qf    said     commencccl    an    action 

against  s<aid ' for  the  conversion  of  the  said  goods 

so  taken  and  seized  by  said on  the  writ  of  attach- 
ment issued  in  said  suit  of against 

by  the  seizing  of  said  goods  under  said  writ  of  attachment 

in    said    action    of    against    and 

by  the  holding  of  said  goods  after  demand  was  made  on  said 

sheriff  as  aforesaid,  by  said for  the 

possession  of  said  goods;  and  that  the  value  of  the  goods  in 

controversy  in  said  action  of .  against • . 

was  the  value  of  said  goods  seized  by  said ,  sheriff 

as  aforesaid  under  and  by  virtue  of  said  writ  of  attachment 

issued  in  said  case  of against ,  which 

were  the  goods  for  the  taking  and  holding  possession  of  which 

by  the  said ,  sheriff  as  aforesaid,  the  said 

in  and  by  their  said  bond  hereinbefore  set  I'orth  undertook  and 

agreed    to    hold   the    said    ,   sheriff   as   aforesaid, 

harmless  and  indemnilied. 

And  that  thereafter  such  proceedings  were  had  in  said  suit 

of    against    that   a  judgment    M-as 

rendered  in  said  district  court  of  the   judicial  dis- 
trict   of    the    county    of    ,    in    said    territory    of 

,  in  said  action  of  said against  said 

'. in  favor  of  said   and  against  said 

' '  i for  the  sum  of  ,  with  legal  interest 

thereon  since  the  day  of and  costs 

and  disbursements;  and  in  order  to  satisfy  said  judgment  and 
pay  his  attorney's  fees  and  other  necessary  and  unavoidable 

expenses  in  said  suit  incurred  by  him,  the  said   

was  compelled  to  pay  out  and  expend,  and  did  pay  out  and 

expend  a  large  sum  of  money,  to  wit,  

That  at  the  time  of  the  occurrences  hereinbefore  described, 

there  was  in  force  in  the  territory  of a  statute  in 

the  words  and   figures  as   follows,   to   wit:      (Insert   copy   of 
statute).     That  said  statute  remained  in  full  force  and  effect 

thereafter  until  the  territory  of was  admitted  as 

one  of  the  states  of  the  United  States,  when  the  following  stat- 
ute went  into  force :     (Insert  copy  of  statute). 

Nevertheless,   the  said  defendants  not  regarding  their  said 
promises,  undertakings  and  agreements,  though  often  requested 

so  to  do,  have  not  yet  repaid  to  the  said or  to  the 

plaintiff,  the  administrator  of  the  estate  of  said  _ 

said  sum  of  $ or  any  part  thereof,  nor  have  they  in  any 

manner  indemnified  the  said  or  the  plaintiff,  the 

administrator  of  the  estate  of  said    on  account 

of  having  paid  the  same,  but  have  hitherto  wholly  neglected 
and  refused  to  pay  the  same,  and  still  do  so  neglect  and  refuse 


ASSUMPSIT  433 

to  do,  to  the  damage  of  the  plaintiff  of  the  sum  of  $  for 

which  he  brings  his  suit,  etc.^^  * 

1023  Insurance,  contract,  ambiguity 

Ambiguous  or  doubtful  provisions  of  an  insurance  contract  are 
interpreted  against  the  insurer,  but  this  does  not  authorize  a 
perversion  of  language  for  the  purpose  of  creating  an  ambigu- 
ity where  none  exists.^*^ 

1024  Insurance,  form  of  action 

Since  the  statutory  provision  abolishing  common  law  distinc- 
tions between  sealed  and  unsealed  instruments  as  controlling 
the  form  of  action,  an  action  of  assumpsit  is  appropriate  on  a 
sealed  policy  of  insurance.*^  ^ 

1025  Insurance,  parties 

The  surviving  beneficiary  may  bring  an  action  upon  an  in- 
surance certificate  without  joining  the  administrator  of  the 
decedent.68  A  benefit  certificate  that  has  been  made  payable 
to  ''children,"  does  not  include  children  of  deceased  children, 
or  grandchildren,  for  in  Illinois,  the  beneficiary  has  no  vested 
right  or  interest  in  the  contract  between  the  meml)er  and  the 
benefit  society,  and  the  statute  of  Descent  is  inapplicable.*' » 

1026  Insurance;  declaration,  requisites,  proof 

In  declaring  upon  an  insurance  policy,  all  precedent  acts 
or  conditions  should  be  set  out  and  performance  should  be 
averred,  either  in  terms  or  in  substance  showing  a  right  of  re- 
covery, omitting  all  conditions  subsequent  to  the  right  of  re- 
covery and  all  acts  to  be  done  by  the  insurerjo  An  allegation 
that  the  plaintiff  has  performed  all  of  the  conditions,  etc.,  refers 
to  conditions  which  have  not  been  waived.'^  The  averments  of 
performance  in  a  declaration  may  be  general,  under  Florida 
practice.'^2     ^  requirement  in  Michigan  that  a  declaration  on 

05  Meyer   v.    Purcell,    214   ni.    62  ^o  Eockf  ord  Ins.  Co.  v.  Nelson    65 

^  r«n^-             T^   •   ,         .rx  ^^-  *1^'   Tillis  V.  Liverpool  &  Lon- 

G6  Crosse  v.  Knights  of  Honor,  2o4  don  &  Globe  Ins.  Co.,  46  Fla   "78 

111.  80,  85,  86  (1912).  7i  Levy  v.  Peabody  Ins  Co.,  10  W 

C'  Bockford    Ins.    Co.    v.    Nelson,  Va.  560,  565   (1877) 

65  m.  415,  424   (1872).  :2  Tillis  v.  Liverpool  &  London  & 

«s  Jones  v.  Knights  of  Honor,  236  Globe  Ins.  Co.,  supra. 
111.  113,  117   (1908). 

69  Martin     v.     Modern    Woodmen, 
253  111.  400,  403   (1912). 


434  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

an  insurance  policy  need  not  set  forth  the  policy  in  haec  verba 
does  not  dispense  with  the  necessity  of  proving  such  policyJ^ 

1027  Instalments 

Any  number  of  instalments  due  upon  an  instrument  may  be 
declared  for  in  one  and  the  same  count."* 

1028  Interest,  foreigrn  laws,  Narr.  (HI.) 

And  whereas,  also,  the  said  defendant,  to  wit,  on  the  first 

day  of  ,  was  indel)ted  to  the  said  plaintiff  in  the 

further  sum  of,  to  wit doUars   lawful 

money  of  the  United  States  for  interest  upon  and  for 
the  forbearance  of  divers  other  sums  of  money  before  that  time, 
and  then  due  and  owing  from  the  said  defendant  to  the  said 

plaintiff,  for,  to  wit,  interest  on  the  sum  of,  to  wit, 

and dollars,  the  amount  due  from  said  defendant 

to  said  plaintiff  for  cattle  sokl  and  delivered  by  said  plaintiff 

to  said  defendant,  on  and  before  to  wit,    under 

and  in  accordance  with  said  contract  in  said count 

mentioned  and  set  out — said  interest  being  due  at  the  rate  of 

per  cent    per  annum  from  to  wit, 

,  under  and  by  virtue  of  the  law  and  statute  of 

the  state  of ,  in  force  upon  said day 

of ,  and  from  thence  hitherto, — said  law  and  stat- 
ute to  be  found  in,  to  wit,  section  ....  of  chapter  .  .  .  .,  of  the 

compiled   statutes   of    enacted   at   the    regular 

session  of  the legislative  assembly  of , 

which  said  law  and  statute  of  the  state  of  ,  is  in 

the  following  w^ords,  to  wit:     (Insert  pertinent  section). 

And  being  so  indebted  to  the  said  plaintiff,  the  said  defendant 
in  consideration  thereof,  afterAvards,  to  wit,  on  the  same  day 
and  year,  and  at  the  place  aforesaid,  undertook  and  then  and 
there  faithfully  promised  the  said  plaintiff  well  and  truly  to 
pay  unto  the  said  plaintiff  the  sum  of  money  last  mentioned 
when  the  said  defendant  should  be  thereunto  afterwards 
requested.     Nevertheless,  etc.'^^ 

1029  Judgment;  merger  of  judgment  debtor,  Narr.  (Mich.) 

For  that  whereas,  hereofore,   to   wit,   on   the    

day  of ,  19. .,  the  circuit  court  of  the  United 

States  for  the  district  of  ,  at  a  reg- 
ular term  of  said  court  holding  at  the  city  of   , 

73  Morley  v.  Liverpool  &  London  v.  Buckmaster,  1  Seam.  447,  450,  451 

&  Globe  Ins.  Co.  85  Mich.  210,  217  (1838). 

(1891).  V5  Morris  v.  Wibaux,   159  111.  627 

-4  Consolidated  Coal  Co.  v.  Peers,  (1896). 
150   111.   344,   349    (1894);    Godfrey 


ASSUMPSIT  435 

in  the  state  of ,  in  a  certain  cause  therein  pending 

wherein  the  plaintiff  herein  was  plaintiff,  and  the  said  J,  a 
corporation  organized  under  the  laws  of  the  state  of  Michigan, 
was  defendant,  awarded  to  the  plaintiff'  a  final  judgment  against 

the  said  J  in  the  sum  of,  to  wit, dollars  damages, 

being  the  amount  then  and  there  adjudged  to  be  due  to  the 
plaintiff  in  said  action  on  account  of  the  non-performance  of 
certain  undertakings  of  the  said  J,  as  well  as  the  further  sum 

of,  to  wit, dollars  and cents  for  the 

costs  and  charges  of  the  said  plaintiff  by  him  about  his  suit  in 
that  behalf  expended,  as  by  the  records  and  proceedings  thereof 
remaining  in  said  court  more  fully  appears,  which  said  judg- 
ment still  remains  in  full  force  and  effect  and  has  not  been 
reversed,  satisfied  or  otherwise  vacated.* 

And  the  plaintiff  avers  that,  before  the  rendition  of  said 
judgment,  but  after  the  cause  of  action  upon  which  the  same 

w^as  based  had  accrued  to  the  plaintiff^  to  wit,  on  the 

day  of ,  19.  .,  said  J,  W,  and  certain  other  corpo- 
rations unknown  to  the  plaintiff,  all  of  which  were  organized 
under  the  laws  of  the  state  of  Michigan,  became  and  were 
merged,  consolidated  and  amalgamated  into  a  certain  other 
corporation  organized  under  the  laws  of  the  state  of  Michigan, 
to  wit,  C. 

And    the   plaintiff   avers   that    afterwards,    to    wit,    on    the 

day  of   ,  19 .  . ,  said  C  became  and 

was  merged,  consolidated  and  amalgamated  with  and  into  the 
defendant  herein,  M. 

And  the  plaintiff  avers  that  said  C  was  in  law  and  in  fact 
a  consolidation,  merger  and  amalgamation  of  the  said  J  and 
W  and  other  corporations  unknown  to  the  plaintiff,  and  that 
the  defendant  herein  is  in  law  and  in  fact  a  consolidation, 
merger  and  amalgamation  with  said  C;  and  the  plaintiff  avers 
that  since  the  respective  consolidations,  mergers  and  amalga- 
mations, said  J  and  said  C  have  wholly  ceased  to  do  or  trans- 
act any  business,  that  neither  of  said  corporations  have  any 
property,  assets  or  franchises  of  any  kind  or  description  and 
are  wholly  insolvent  and  without  property  or  assets  of  any 
description  with  which  to  pay  and  discharge  their  respective 
debts  and  obligations.  That  all  of  said  property,  assets  and 
franchises  of  both  of  said  corporations  are  now  owned,  pos- 
sessed, used  and  occupied  by  the  defendant  herein  by  virtue 
of  said  several  and  respective  mergers,  consolidations  and  amal- 
gamations as  aforesaid. 

2.  (Consider  first  count  to  star  as  here  repeated  the  same  as 
if  copied  in  words  and  figures.) 

And  the  plaintiff  avers  that  before  the  rendition  of  said  judg- 
ment, but  after  the  cause  of  action  upon  which  the  same  was 

based,  had  accrued  to  the  plaintiff,  to  wit,  on  the 

day  of ,  19 . . ,  said  J,  by  certain  mesne 


436  ANNOTATED   FORMS  OF  PLEADING   AND   PRACTICE 

conveyances  assigned  and  transferred  to  the  said  C,  all  of  its 
property,  assets  and  franchises  of  every  kind  and  descrii)tion. 
That  the  only  consideration  for  said  assignment  and  transfer 
aforesaid  was  the  issue  and  delivery  to  bondholders  of  said  J, 
of  the  said  bonds  of  said  C,  in  exchange  for  and  in  substitu- 
tion of  the  bonds  of  said  J,  and  also  the  issuance  and  delivery 
to  the  stockholders  of  said  J,  of  the  stock  of  said  C,  in  exchange 
for  and  to  take  the  place  of  the  stock  held  by  said  stockholders 
in  said  J ;  and  that  no  other  or  furtlier  consideration  was  paid 
by  said  C,  to  or  received  by  the  said  J. 

And  the  plaintiff  further  avers  that,  afterwards,  to  wit,  on 

the day  of ,  19 .  . ,  the  said  C,  assigned 

and  transferred  all  of  its  property,  assets  and  franchises  of 
every  kind  and  description,  including  the  property  so  received 
by  it  as  aforesaid  from  the  said  J  to  M,  the  defendant  herein. 
That  no  other  or  further  consideration  was  paid  by  said  defend- 
ant to  said  C  than  the  issuance  and  delivery  to  the  bondholders 
of  the  said  C  bonds  of  said  dcfciulant  in  exchange  and  to  take 
the  place  of  the  bonds  of  said  C,  and  of  the  issue  and  delivery 
of  stock  of  said  defendant  to  the  stockholders  of  said  C  in 
exchange  and  to  take  the  place  of  the  stock  held  by  the  stock- 
holders in  the  said  C. 

And  the  plaintiff*  further  avers  that  since  the  said  several 
transfers  and  assignments  as  aforesaid  the  said  J  and  the  said 
C  have  wholly  ceased  to  do  or  to  transact  any  business  and 
that  neither  of  said  corporations  have  any  property,  assets  or 
franchises  of  any  kind  or  description,  but  are  wholly  insolvent 
and  without  any  means  whatever  with  which  to  pay  and  dis- 
charge their  respective  debts  and  obligations.  That  all  of  said 
property,  assets  and  franchises  of  both  of  said  corporations, 
to  wit,  J  and  C,  are  now  owned,  possessed,  used  and  occupied 
by  the  defendant  herein  by  virtue  of  said  several  assignments 
and  transfers  aforesaid,  and  for  no  other  or  additional  con- 
sideration than  the  exchange  of  said  stocks  and  bonds  afore- 
said. 

3.  (Consider  first  count  to  star,  as  here  repeated,  the  same 
as  if  copied  in  words  and  figures.) 

And  the  plaintiff  avers  that  before  the  rendition  of  said 
judgments,  but  after  the  cause  of  action  upon  w^hich  the  same 

was  based  had  accrued  to  the  plaintiff,  to  wit,  on  the   

day  of ,  19 .  . ,  the  said  J  transferred 

and  assigned  to  C  all  of  its  property,  assets  and  franchises  of 
every  kind  and  description,  and  that  in  consideration  of  said 
transfer  and  assignment  said  C  promised  and  agreed  to  and 
with  said  J  that  it,  said  C,  would  pay  and  discharge  all  claims, 
demands,  judgments  and  causes  of  action  of  every  kind  and 
description  then  or  thereafter  arising  or  owing  by  the  said 
J,  and  particularly  said  C  promised  and  agreed  to  and  with 
said  J  and  the  plaintiff  herein  that,  In  consideration  of  said 


ASSUMPSIT  437 

assignment  and  transfer,  it,  said  C,  would  pay  and  discharge 
the  claim  and  judgment  of  the  plaintiff  hereinbefore  mentioned. 
That  no  other  consideration  was  made  or  given  by  the  said  C 
for  such  assignment  and  transfer  aforesaid  except  the  promise 
and  agreement  aforesaid. 

And  the  plaintiff  further  avers  that,  afterwards,  to  wit,  on 
the  day  of  ,  19 .  . ,  the  said  C  as- 
signed and  transferred  all  of  its  property,  assets  and  franchises 
of  every  kind  and  description  to  the  defendant  herein,  M. 
That,  in  consideration  of  said  assignment  and  transfer  as  afore- 
said of  all  property,  assets  and  franchises  of  said  C  to  the  de- 
fendant herein,  the  said  defendant  promised  and  agreed  to  and 
with  the  said  C  and  the  plaintiff  herein  that  it  would  pay  and 
discharge  all  claims,  demands,  judgments  and  causes  of  action 
of  every  kind  and  description  owned  by  the  said  C,  and  par- 
ticularl}^  did  the  said  defendant  herein  promise  and  agree  with 
the  said  C  and  the  plaintiff  herein  that  it  would  pay  and  dis- 
charge the  claim  and  judgment  of  the  plaintiff  hereinbefore 
mentioned  in  consideration  of  the  assignment  and  transfer  as 
aforesaid. 

And  the  plaintiff  further  avers  that  since  said  several  assign- 
ments and  transfers  as  aforesaid  said  J  and  C  have  ceased 
to  transact  any  business  and  that  neither  of  said  corporations 
have  any  property,  assets  or  franchises  of  any  kind  or  descrip- 
tion with  which  to  pay  and  discharge  their  respective  debts 
and  obligations.  That  they  are  wholly  insolvent  and  without 
means  of  any  description  whatever;  that  all  of  said  property, 
assets  and  franchises  of  both  of  said  corporations  are  now 
owned,  possessed,  used  and  occupied  by  the  defendant  herein 
by  virtue  of  said  several  assignments  and  transfers  as  afore- 
said; and  that  no  other  or  further  consideration  was  paid  by 
the  defendant  herein. 

By  means  whereof,  the  said  defendant  became  and  was  in- 
debted to  the  plaintiff  upon  said  judgment,  and  being  so  in- 
debted, the  said  defendant  afterwards,  to  wit,  on  the    

day  of ,  19 .  . ,  in  consideration  of 

the  premises,  promised  the  plaintiff  to  pay  him  the  said  sev- 
eral sums  of  money  hereinbefore  mentioned  when  it,  the  said 
defendant,  should  be  thereunto  afterwards  requested.  Never- 
theless, etc. 

1030  Lease,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the   

day  of ,  19 .  . ,  at ,  county  of 

,  and  state  of ,  the  said  plaintiff,  by 

name  and  style  of ,  demised  to  the  said  defendants 

by   the   several   names   of    and    ,   a 

certain  messuage  and  premises  with  the  tenements  and 
appurtenances    thereunto    belonging,    situate    in    the    city    of 


438  ANNOTATED  FORMS  OF   PLEADING  AND   PRACTICE 

,  county  and  state  aforesaid,  being  the 

floor,  known  and  designated  as  the   floor  of  the 

apartment  building,  numbers  ave- 
nue, to  have  and  to  hold  the  same  to  the  said  defendants  for  a 

certain  term,  to  wit,  for  and  during  the  term  from  the 

day  of ,  ly. .,  to  the 

day  of ,  l^J-  •,  they  yielding  and  paying 

therefor,  during  the  said  term  to  the  said  plaintiff,  the  rent  of 

dollars,  that  is  to  say,  on  the  first  day  of  each 

and  every  month  during  said  term,  the  sum  of 

dollars  by  even  and  equal  portions;  by  virtue  of  which  said 
demise,  said  defendants  entered  into  possession  of  said  properly 
with  the  appurtenances  and  became  and  were  possessed  thereof 

from,  to  wit,  the  said diiy  of , 

19. .  ;  that  the  said  demise  is  still  in  full  force  and  effect;  and 
that  a  large  sum  of  money,  to  wit,  the  sum  of dol- 
lars of  the  rent  aforesaid  for  the  space  of months, 

ending,  to  wit,  on  the day  of \' :>"V 

19..,  became  and  was  due  and  payable  from  the  said  detend- 
ants  to  the  said  plaintiff,  and  still  is  in  arrears,  and  unpaid  to 

the  said  plaintiff',  to  wit,  at   ,  in  the  county  of 

,  and  state  aforesaid.    By  reason  whereof,  and 

by  force  of  the  statute  in  such  case  made  and  provided,  said 
defendants  became  liable  to  pay  to  said  plaintiff  the  said  sum 
of  money,  rent  as  aforesaid,  in  the  said  lease  specified  according 
to  the  tenor  and  effect  of  the  said  lease;  and  being  so  liable, 
said  defendants,  in  consideration  thereof,  afterwards,  to  wit, 
on  the  same  day  and  year  last  aforesaid,  and  at  the  place  last 
aforesaid,  undertook  and  then  and  there  faithfully  promised 
said  plaintiff  well  and  truly  to  pay  unto  said  plaintiff  said  sum 
of  money,  rent  as  aforesaid,  in  the  said  lease  specified,  accord- 
ing to  the  tenor  and  effect  of  said  lease.     Yet,  etc. 


For  that  whereas,  to  wit,  on  the  first  day  of  , 

19 .  . ,  by  a  certain  lease  in  writing  then  and  there  made  between 
the  plaintiff  of  the  one  part,  and  0,  a  corporation,  etc.,  of  the 
other  part,  the  plaintiff  demised  and  leased  unto  said  0,  and  to 
its  successors  and  assigns,  the  following  described  premises,  to 
wit  (Describe  property),  which  said  premises  were  to  be  occu- 
pied for  a  saloon,  beer  garden  and  dwelling,  and  for  no  other 
purpose;  and  in  and  by  said  lease  said  0  was  to  have  and  to 
hold  the  said  premises  to  itself  and  its  successors  and  assigns 

from  the day  of ,  19 .  . ,  to  the .  . 

day    of     ,    19..,,    yielding    and    paying    to    the 

plaintiff  therefor  the  sum  of   ($ )    dollars 

in  monthly  instalments  of   ($ )    dollars  m 

advance  upon  the  first  day  of  each  and  every  month  of  said 
term,  at  the  office  of  the  plaintiff  in  And  said 


ASSUMPSIT  439 

0,  for  itself  and  for  its  assigns,  did  thereby  then  and  there 
covenant  and  promise  with  the  plaintiff,  his  heirs,  representa- 
tives and  assigns,  that  it  would  well  and  truly  pay  or  cause 
to  be  paid  to  the  plaintiff,  his  heirs,  representatives  and  assigns, 
the  said  rental  in  monthly  instalments  of  dol- 
lars each  in  advance,  in  accordance  with  the  conditions  of  said 
lease ;  and  said  0  further  covenanted,  promised  and  agreed  with 
the  plaintiff  that  it  would  pay  its  portion  of  the  water  taxes 
levied  or  assessed  against  the  said  premises  during  the  term 
of  said  lease ;  a  copy  of  which  lease,  with  the  endorsements  and 
assignments  thereof,  is  hereto  attached,  marked  exhibit  "A," 
and  made  a  part  hereof. 

And  the  plaintiff  avers  that  afterwards,  and  on,  to  wit,  the 

day  of    ,  19 . . ,  said   0  did,   for  a 

valuable  consideration,  duly  sell,  assign,  transfer  and  set  over 
in  writing  ail  of  its  right,  title  and  interest  in  and  to  said  lease 
to  A,  the  defendant  lierein,  and  to  its  successors  and  assigns, 
in  consideration  of  said  assignment  by  said  0  to  the  defend- 
ant, and  of  the  consent  to  such  assignment  by  the  plaintiff,  in 
writing,  which  assignment  and  consent  were  duly  accepted  by 
the  said  defendant,  said  defendant  entered  into  the  possession 
and  complete  control  of  the  said  demised  premises  as  of  its 
own  property,  in  accordance  with  the  terms  and  conditions 
of  the  said  lease  hereinbefore  referred  to ;  and  by  means  whereof 
the  defendant  did  covenant,  promise  and  agree  to  and  with  the 
plaintiff'  to  keep  and  perform  any  and  all  of  the  covenants, 
terms  and  conditions  in  the  said  lease  contained,  and  did  also 
further  promise,  covenant  and  agree  to  pay,  or  cause  to  be  paid 
to  the  plaintiffs  or  to  his  heirs,  representatives  and  assigns, 
the  several  sums  of  money  that  might  become  due  and  payable 
under  the  terms  and  conditions  of  said  lease,  and  in  accordance 
with  the  agreements  therein  contained,  upon  the  day  or  days 
therein  named.  By  reason  thereof,  the  said  defendant  thereby 
bound  itself,  its  successors  and  assigns,  to  keep  and  perform 
any  and  all  of  said  covenants,  terms  and  conditions  in  said  lease 
contained. 

And  in  consideration  of  the  said  assignment  of  said  lease  by 
said  0  to  the  defendant,  the  consent  to  such  assignment  by  the 
plaintiff,  the  acceptance  of  said  lease  and  the  assignment  there- 
of, as  aforesaid,  by  the  defendant  on,  to  wit,  the  day  and  year 
last  aforesaid,  the  defendant  became  and  was  possessed  of  the 
said  premises,  to  the  same  extent  and  under  the  same  terms 
and  conditions  as  those  possessed  by  said  0,  prior  to  the  time 
of  said  assignment;  that  in  pursuance  of  such  assignment  and 
the  acceptance  thereof,  as  aforesaid,  and  on,  to  wit,  the  day  and 
year  last  aforesaid,  the  defendant  entered  into  the  possession 
of  and  control  over  the  said  demised  premises  in  the  said  lease 
specified  as  of  its  own  premises,  and  the  said  defendant  con- 
tinued to  use,  occupy  and  enjoy  the  said  premises  and  the  rents, 
issues  and  profits  thereof,  from,  to  wit,  said  last  named  day, 


440  ANNOTATED  FORMS  OF   PLEADING  AND   PRACTICE 

without  interruption  or  hindrance  thereof  on  the  part  of  the 
plaintiff  or  of  his  representatives  or  assigns  until  the  full  termi- 
nation of  the  term  of  said  lease  and  until,  to  wit,  the   

day  of ,19... 

Yet,  the  plaintiff  avers,  that  after  the  making  and  execution 
of  the  said  assignment  of  the  said  lease,  as  aforesaid,  by  said  O 
to  the  said  defendant,  and  w'ith  the  consent  of  the  plaintiff,  as 
aforesaid,  the  said  defendant,  wholly  neglecting  and  refusing 
to  keep  and  perform  the  terms  and  conditions  of  said  lease, 
did  not  pay  or  cause  to  be  paid  to  the  plaintiff'  a  large  sum  of 
money  justly  due  to  the  plaintiff  by  the  terms  and  conditions 

of  said  lease,  so  that  on,  to  wit,  the day  of , 

19.  .,  the  defendant  was  in  arrears  for  rent  justly  due  the  plain- 
tiff from  it,  as  aforesaid,  in  the  sum  of ($ ) 

dollars,  being  the  instalments  of  rent  due  for  the  period  of 

months,  commencing  on  the day  of 

19 .  . ,  and  ending  on  the   day 

of ,  19.  .  ;  that  said  sum  of  money  is  still  duo  and 

unpaid  to  the  plaintiff',  contrary  to  the  tenor  and  effect  of  the 
said  lease  and  of  the  assignment  thereof  to  the  defendant,  and 
of  the  acceptance  of  such  assignment  in  the  manner  aforesaid. 
And  so  the  plaintiff  avers  that  the  defendant  has  not  kept  and 
performed  its  covenants  and  agreements  in  the  said  lease  con- 
tained, as  required  by  the  assignment  thereof  and  the  accept- 
ance of  such  assignment  in  the  manner  aforesaid,  but  on  the 
contrary  thereof,  the  defendant  has  broken  its  several  cove- 
nants, promises  and  agreement,  so  made  as  aforesaid.  (Add 
count  for  use  and  occupation  and  common  assumpsit  counts.) 

LIFE  INSURANCE 


1031  Warranties  and  representations 

An  applicant's  answers  to  questions  in  an  application  for  life 
insurance,  which  have  been  honestly  and  truly  made,  which 
are  not  material  to  the  risk,  which  have  not  been  intended  by 
the  parties  to  be  regarded  as  warranties,  and  which  relate  to 
matter  of  opinion  or  judgment  concerning  which  there  might 
be  a  mistaken  but  honest  belief,  will  be  considered  as  mere  rep- 
resentations, and  as  not  barring  a  recovery,  if  such  a  construc- 
tion may  reasonably  be  given  to  the  insurance  contract,  not- 
withstanding a  provision  in  the  contract  that  the  questions  and 
answers  are  to  be  deemed  warranties.  But  such  answers  will 
be  deemed  material,  whether  they  are  so  or  not,  when  they  are 
expressly  warranted  to  be  true,  and  will  prevent  a  recovery  un- 
der the  contract,  where  they  are  shown  to  be  false,  although  in- 


ASSUMPSIT  441 

nocently  madeJ'^  The  question  whether  any  specified  relatives 
or  blood  relatives  of  the  proposed  insured  had  been  afflicted 
with  either  of  certain  enumerated  diseases,  or  with  any  other 
disease  not  mentioned  that  is  hereditary,  is  material  to  a  life 
insurance  risk.'^  "How  long  since  were  you  attended  by  a 
physician  or  professionally  consulted  one?"  means  how  long 
it  had  been  since  the  applicant  had  last  consulted  a  physician  or 
had  been  treated  by  one,  and  does  not  relate  to  a  matter  of 
opinion  or  judgment  concerning  which  there  might  be  a  mis- 
taken but  honest  belief,  and  an  answer  to  the  question  is  ma- 
terial to  the  riskJ8 


1032  Accident,  Narr.  (111.) 

For  that  whereas  on,  to  wit,  the day  of , 

19 . . ,  at  the  place  hereinbefore  stated,  to  wit,  at  the  county  of 

,  and  state  of ,  the  defendant, 

,  made  a  certain  policy  of  insurance  and  delivered 

the  same  to  ,  who  was  then  and  there  the  son 

of  the  plaintiff  herein,  and  thereby  said  defendant  then  and 
there,  for  the  consideration  therein  expressed,  promised  the 
plaintiff  in  the  terms  of  said  policy  of  insurance  and  the  agree- 
ments and  conditions  thereto  annexed,  which  said  policy  of 
insurance  and  agreements  and  conditions  are  in  the  words  and 
figures,  following,  to  wit:    (Set  out  policy  in  Jiaec  verba). 

And  plaintiff'  alleges  that  the  representations  made  by  the 
said in  the  application  for  said  policy  of  insur- 
ance were  true  in  all  respects  in  substance  and  in  fact,  and 
that  he  paid  the  regular  premium  as  required  by  the  terms  of 
said  policy  and  all  moneys  due  from  him  to  said  defendant  ac- 
cording to  the  terms  of  said  policy,  and  did  all  things  on  his 
part  to  be  performed. 

And  the  plaintiff  further  alleges  that  she  is  the  mother  of 
the  said ,  and  is  named  in  the  said  policy  of  insur- 
ance as  the  beneficiary  therein,  and  that  the  said , 

at  the  time  of  the  issuing  of  said  policy  of  insurance  to  him  as 

aforesaid,  was  by  occupation  and  employment  a   

for  a  railroad  contractor  and  resided  in  the  town  of , 

in  the  county  of ,  in  the  state  of 

And    the    plaintiff    alleges    that    the    said     , 

up  to  the  time  of  his  death  as  hereinafter  set  forth,  kept  and 
performed  each,  all  and  every  one  of  the  conditions,  obliga- 
tions and  requirements  of  the  said  policy  of  insurance. 

76  Crosse  v.  Knights  of  Honor,  254  78  Crosse  v.  Knights  of  Honor, 
111.  80,  84   (1912).                                        254  HI.  83,  86. 

77  Enright  v.  Knights  of  Security, 
253  HI.  460,  462,  465  (1912). 


442  ANNOTATED  FORMS  OP   PLEADING   AND  PRACTICE 

And  plaintiff  further  alleges  that  the  said died 

on  the day  of ,  19 . . ,  at  the 

county  of ,  in  the  state  of ,  afore- 
said, to  wit,  at (Here  insert  county  where  suit  is 

brought)  county.  That  his  death  was  produced  by  bodily  in- 
juries received  by  or  through  external,  violent  and  accidental 
means  within  the  true  intent  and  meaning  of  the  aforesaid  pol- 
icy of  insurance,  to  wit,  by  accidentally  taking  and  drinking 
poison ;  and  that  such  injuries  alone  occasioned  the  said  death 

of  the  said within  days  from 

the  happening  thereof,  to  wit,  on  the  same  day  of  the  happen- 
ing thereof;  and  plaintiff  further  alleges  that  the  said  policy 

of  insurance  was  not  obtained  by  the  said by 

or  through  the  means  of  any  misrepresentation,  or  concealment, 
or  of  any  false,  fraudulent  or  untrue  statements  of  any  nature, 
and  that  no  attempt  has  been  made  by  this  plaintiff  or  by  any 
other  persons  whomsoever,  either  by  fraud  or  by  the  conceal- 
ment, suppression  or  misrepresentation  of  any  material  fact 

or  facts  to  obtain  any  money  from  the  said  defendant, , 

or  by  virtue  of  said  policy  of  insurance. 

And  plaintiff  further  alleges  that  the  said  death  of  the  said 
was  not  produced  in  consequence  of  disease  exist- 
ing prior  or  subsequent  to  the  date  of  said  policy  of  insurance; 
and  that  said  death  of  . , . , " was  not  a  case  of  disap- 
pearance, nor  suicide,  sane  or  insane,  nor  accident,  nor  death, 
nor  loss  of  limb  or  sight,  nor  disability  resulting  wholly  or 
partly,  directly  or  indirectly,  from  any  one  of  the  following 
causes,  or  while  so  engaged  or  affected:  (Name  the  diseases 
and  causes  which  the  policy  specifically  fails  to  cover),  within 
the  time,  intent  and  meaning  of  said  policy. 

And  plaintiff  further  alleges  that  due  and  sufficient  proofs 

of  the  death  of  the  said  through  bodily  injuries 

received  by  or  through  external,  violent  and  accidental  means 
as  aforesaid,  were  presented  to  the  said  defendant  insurance 

company  within    months  after  the  death  of  the 

said ,  to  wit,  ,  19 . . ,  in  accord- 
ance with  the  requirements  of  said  policy  of  insurance,  but  that 
the  said  defendant  then  refused,  and  still  does  refuse,  and 
neglects  to  pay  the  amount  so  justly  due  and  owing  to  this 
plaintiff  upon  the  said  policy  of  insurance  as  aforesaid.  And 
plaintiff  alleges  that  no  part  or  portion  of  the  amount  agreed 
to  be  paid  in  and  by  said  policy  of  insurance,  to  wit,  the  sum 

of  dollars,  has  been  paid  to  or  received  by  her, 

but  that  the  whole  amount  thereof  is  due  and  owing  to  her,  to 
wit,  the  just  and  full  sum  of dollars. 

And   plaintiff   further   alleges   that   the   said    , 

from  the  time  of  the  issuing  to  and  the  receipt  by  him  of  the 
said  policy  of  insurance  as  aforesaid,  and  up  to  and  at  the  time 

of  said  accident  and  of  the  death  of  the  said    

therefrom,  as  aforesaid,  the  said continued  to  and 


ASSUMPSIT  443 

did  reside  in  the  said  county  of  and  state  of 

to  wit,  (Insert  county  of  suit,  although  actual  residence 
is  different),  county,  and  remained  and  con- 
tinued in  the  business  of for  a  railroad  contractor, 

and  was  not  during  that  time  engaged  m  any  other  business, 
occupation  or  employment;  and  plaintiff  avers  that,  as  the 

mother  of  the  said ,  and  as  the  beneficiary 

named  in  said  policy  of  insurance  and  person  to  whom  the 
same  was  to  be  paid  in  the  event  of  the  death  of  the  said 
. . .,  she  has  kept,  done  and  performed  all  things  by  her  to 
be  kept  done  and  performed  according  to  the  terms  of  said 
policy  of  insurance,  and  that  she  is  entitled  to  have  and  receive 
from  the  said  defendant,  the  amount  of  said  policy  so  agreed 

to  be  paid  to  her  as  aforesaid,  to  wit,   :'■■''  ^^^\  ^!^„^ 

said  defendant,  not  regarding  its  said  promise  m  that  belialt, 
utterly  broke  and  violated  the  same  and  refused  to  pay  the 
same,  or  any  part  thereof,  and  though  often  requested  to  pay 
the  same,  has  hitherto  refused  and  neglected  and  still  refuses 
so  to  do,  to  the  damage,  etc."^^ 

h 

For  that  whereas,  before  and  at  the  dates  hereinafter  men- 
tioned, the  said  defendant  was  engaged  in  the  business  of  insur- 
ing persons  against  accidental  bodily  injuries,  including  acci- 
dental death,  in  said  county,  and  on,  to  wit,  the 

(Jay  of ,  19  •  • ,  and  in  the  lifetime  of  said 

J  W    in  consideration  of  the  payment  by  him  of  the  sum  of 

[ ($ )   dollars,  did  issue  and  deliver  in  said 

county  to  said  J  W  a  certain  contract  or  accident  insurance 
policy,  number ,  duly  signed  by  its  president  and  sec- 
retary and  general  agent,  a  copy  of  which  policy  is  attached  to 
this  declaration,  marked  exhibit  "A,"  and  made  a  part  hereof, 
which  said  policy  provided  among  other  things  substantially 
as  follows:     In  consideration  of  the  warranties  set   forth   m 

said  policy  and  of  the  sum  of ($ )  dollars, 

the  C  D  insured  and  promised  to  insure  said  J  W  for  the  term 

of months  from  the day  of , 

19.*.*,*  at  noon,  against  bodily  injuries  effected  through 
external  violent  and  accidental  means,  in  the  principal  sum  of 

, ' ($ )    dollars ;  that  the  said  principal  sum 

should  *be  payable  to  the  executors,  administrators  and  assigns 
of  the  said  J  W  in  case  of  his  death  from  such  bodily  injuries 
alone  within  ninety  days  from  the  time  of  receiving  such  injur- 
ies- and  that  in  case  such  injuries  were  m  consequence  ot 
the'  burning  of  a  building  in  which  the  said  J  W  should  be  at 
the  commencement  of  the  fire,  the  amount  to  be  paid  his  execu- 
tors, administrators  or  assigns  should  be  double  the  said  amounl, 

79  Travelers'  Ins.   Co.  v.  Dunlap, 
160  m.  642   (1896). 


444  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

that  is  to  say,  should  be  the  sum  of ($ ) 

dollars.    That  on,  to  wit,  the day  of , 

19..,  the  said  defendaiit,  iu  consideration  of  the  further  sum 

of ($ )  dollars,  then  paid  to  it  in  said 

county  by  said  J  W,  issued  to  him  a  further  contract  or  renewal 
receipt,  duly  signed  by  the  proper  agents  of  said  defendant,  a 
copy  whereof  is  hereto  attached,  marked  exhibit  "B,"  and  made 
a  part  hereof,  whereby  tlie  said  policy  of  insurance  was  renewed 
and  continued  for  a  further  term  of months,  be- 
ginning on  the   day  of   ,  19 . . , 

and  running  to  the day  of ,  19 . . ,  at 

noon. 

And  the  plaintiff  further  avers  that  subsequently,  to  wit,  on 

the   day  of ,  19.  .,  and  while 

said  policy  was  in  force  as  aforesaid,  the  said  J  W  suffered 
injuries  in  the  said  county  aforesaid  through  external,  violent 
and  accidental  means  and  iu  consequence  of  the  burning  of  a 
building  in  which  the  said  J  W  was  at  the  commencement  of 
the  fire,  from  the  result  of  which  injuries  solely  the  said  J  W 

died  within  ninety  days  thereafter,  on,  to  wit,  the 

day  of ,  19. .,  in  the  county  aforesaid. 

And  the  plaintiff  further  avers  that  all  the  requirements  and 
conditions  of  said  policy  to  be  kept  or  performed  or  necessary 
to  happen  in  order  to  render  the  said  defendant  liable  to  pay 
the  said  amount  of ($ )  dollars  to  this  plain- 
tiff have  been  duly  kept  and  performed  and  have  happened, 
and  that  said  policy  was  never  assigned  by  said  J  W. 

By  reason  of  which  premises  aforesaid  the  defendant  thereby 
became  and  was  liable  to  pay  to  the  plaintiff'  the  said  sum  of 

($ )    dollars;  yet,  though   often   requested 

so  to  do,  the  said  defendant  has  not  paid  the  said  sum,  or  any 
part  thereof,  to  the  plaintiff',  but  has  wholly  neglected  and  now 
wholly  neglects  and  refuses  so  to  do.  (Add  consolidated  indeb- 
itatus counts) 


For  that  whereas,  heretofore,  on,  to  wit,  the    

day  of ,  19 .  . ,  at,  to  wit,  the  city  of , 

county  and  state  aforesaid,  the  defendant,  for  and  in  considera- 
tion of  the  warranties  endorsed  on  the  policy  of  insurance  here- 
inafter set  forth,  and  of  the  payment  of  a  premium  of,  to  wit, 

,  did  make,  execute  and  deliver  to  F,  of  the  county 

and  state  aforesaid,  its  policy  of  insurance,  which  said  policy 
and  warranties  endorsed  thereon  are  in  words  and  figures  as 
follows,  to  wit:  (Set  forth  policy  and  endorsements  m  haec 
verba).  And  plaintiffs  further  aver  that  they  are  the  duly 
appointed  and  acting  executors  of  the  said  F,  deceased,  whose 
estate  was  made  the  beneficiary  under  said  policy  of  insurance. 

Plaintiffs  further  aver  that  the  premium  of,  to  wit, 
($ )   dollars,  in  said  policy  mentioned,  was  paid 


ASSUMPSIT  445 

to  the  defendant  by  said  F  at  the  time  of  the  execution  and 
delivery  of  said  policy  of  insurance;  that  thereafter,  and  on, 

to  wit,  the day  of ,  19. . ,  the  said  F 

came  to  his  death  by  bodily  injuries  sustained  through  external, 
violent  and  accidental  means,  to  wit,  by  bullet  wounds  inflicted 
by  certain  persons,  who,  at  the  time  said  wounds  were  inflicted, 
assaulted  said  F  for  the  sole  purpose  of  robbery ;  that  death  re- 
sulted within  ninety  days  from  such  injuries,  independently  of 
all  other  cases.     (Aver  administration) 

Plaintiffs  further  aver  that  immediate  written  notice  was 

given  to  the  defendant,  at  ,  ,  of  the 

injuries  from  which  the  death  of  said  F  resulted,  with  full 
particulars  thereof,  and  the  full  name  and  address  of  the 
assured ;  and  that  affirmative  proof  of  the  death  of  said  assured 

was  also  furnished  to  the  defendant  within months 

from  the  time  of  death. 

Plaintiffs  further  aver  that  by  the  execution  and  delivery  of 
said  policy  of  insurance,  and  the  designation  thereon  of  the 
estate  of  the  said  F  as  the  beneficiary  thereunder,  and  the  death 
as  aforesaid  of  the  said  F,  the  defendant  became  bound  and 
obligated  to  pay  to  these  plaintiffs  a  large  sum  of  money,  to 

wit,     ($ )     dollars ;    that    plaintiffs    have 

requested  the  defendant  to  pay  them  the  said  sum  of  money, 
but  that  the  defendant  has  refused,  and  still  refuses,  so  to  do, 
and  that  the  said  sura  of  money  remains  wholly  due  and  unpaid 

to  the  plaintiffs,  to  the  damage  of  the  plaintiffs  of 

(.$ )  ;  and  therefore  they  bring  their  suit,  etc. 

1033  Benefit,  ag-ency 

The  person  who  takes  an  application  of  benefit  insurance  is 
the  agent  of  the  society,  and  knowledge  to  him  is  knowledge  to 
his  principal.^*^ 

1034  Benefit;  warranties,  waiver 

A  benefit  society  waives  its  right  to  claim  that  certain  answers 
shall  constitute  warranties,  when  false  answers  to  an  applica- 
tion are  written  down  by  the  agent  of  the  society.  And  this 
is  not  affected  by  a  request  in  the  benefit  certificate,  to  which 
is  attached  a  copy  of  the  application  containing  the  answers,  to 
read  the  application  and  to  inform  the  society  if  the  answers  are 
incorrect.^^ 


80  Johnson     v.     Royal    Neighbors,  si  Johnson     v.     Royal    Neighbors, 

253  111.  570,  574   (1912).  supra. 


446  ANNOTATED   FORMS  OP  PLEADING  AND   PRACTICE 

1035  Benefit;  liability,  law  and  fact 

The  application  for  the  certificate,  the  physician's  examina- 
tion, the  by-laws  of  the  society  and  the  certificate  issued  are 
all  to  be  considered  as  the  contract  of  fraternal  benefit  insur- 
ance, and  their  meaning  and  construction  are  questions  of  law.^^ 

1036  Benefit;  liability,  commencement,  interest 

A  by-law  of  an  insurance  benefit  society  that  its  liability 
upon  a  benefit  certificate  shall  not  begin  until  its  actual  manual 
delivery  to  a  member  who  is  then  in  sound  health  protects  the 
society  from  liability  in  consequence  of  disease  contracted  by  a 
member  subsequent  to  his  application  for  membership  and  be- 
fore delivery  to  him  of  the  benefit  certificate,  as  in  the  course  of 
business  a  considerable  space  of  time  might  elapse  between  the 
date  of  the  application  and  the  delivery  of  the  benefit  certifi- 
cate.83  j^  plaintiff  who  is  entitled  to  recover  upon  a  benefit  in- 
surance certificate  is  also  entitled  to  interest.®^ 

1037  Benefit,  beneficiary 

The  undertaking  of  a  lodge  or  order  is  that  it  will  pay  the 
amount  agreed  upon  to  the  person  designated  in  the  certificate 
if  he  is  within  the  eligible  class;  and  if  he  is  not,  that  it  will 
pay  the  benefit  fund  to  some  other  person  who  is  within  the 
eligible  class.  The  designation  by  a  member  of  an  ineligible 
person  merely  relieves  the  order  of  liability  to  pay  to  the  person 
designated.  The  general  obligation  to  pay  to  the  proper  per- 
son still  exists  and  constitutes  the  cause  of  action.  Hence,  a 
count  which  bases  the  recovery  of  the  plaintiff  as  beneficiary 
named  in  the  benefit  certificate,  and  a  count  which  claims  the 
right  of  recovery  in  behalf  of  a  person  who  is  not  thus  desig- 
nated, do  not  necessarily  state  different  causes  of  action. ^^ 
Under  a  benefit  certificate  w^hich  has  been  issued  in  behalf  of 
an  ineligible  and  an  eligible  beneficiary,  the  entire  fund  goes  to 
the  eligible  beneficiary.^^ 

82  Enright  v.  Knights  of  Security,  S5  Beresh    v.    Knights    of    Honor, 
253  111.  462.  255  111.  127. 

83  Johnson     v.     Eoyal    Xeighhors,  so  Cunat  v.  Ben  Hur,  249  111.  448, 
253  111.  57,6.  449,  450   (1911). 

Si  Beresh  v.  Knights  of  Honor,  255 
111.  122,  128   (1912). 


ASSUMPSIT  447 

1038  Benefit,  Narr.  (Dl.) 

(Precede  this  by  common  consolidated  counts) 

For  that  whereas,  on,  to  vnt,  the day  of ., 

19 .  . ,  the  defendant  made  its  policy  of  insurance  wherein 
and  whereby,  for  the  consideration  therein  expressed,  then  and 
there  paid  to  the  said  defendant  by  S,  the  receipt  whereof  was 
by  the  defendant  then  and  there  acknowledged  in  writing  and 
endorsed  on  the  said  policy,  the  said  defendant  constituted  said 
S  a  benefit  member  of  said  defendant  association,  and  therein 

and  thereby  agreed  to  pay  to  the  plaintiff  the  sum  of  $ ., 

subject    to     the     conditions     contained     in     said     policy,     in 

days  after  acceptance  of  satisfactory  evidence  to 

said  association  of  the  death  of  said  member  and  proof  of  a 
valid  claim ;  and  the  said  defendant  then  and  there,  on,  to  wit, 

said day  of ,  19 .  . ,  at , 

in  the  county  aforesaid,  delivered  the  said  contract  or  policy 
of  insurance  to  the  said  S,  which  contract  or  policy  of  insur- 
ance is  hereto  attached,  marked  exhibit  "A,"  and  made  a  part 
of  this  declaration. 

And  the  plaintiff  further  avers  that  afterw^ards,  to  wit,  on  the 

day  of   ,  19 . . ,  and  while  the  said 

contract  or  policy  of  insurance  was  in  full  force  and  effect,  the 
said  S  then  and  there  died;  and  thereafter  the  plaintiff  made 
and  furnished  to  the  defendant  satisfactory  evidence  of  the 
death  of  said  S  and  proof  of  a  valid  claim  of  plaintiff  under 
said  contract  or  policy  aforesaid,  which  said  evidence  of  the 
death  of  said  S  and  proof  of  said  valid  claim  was  in  all  respects 
in  accordance  with  the  terras  and  provisions  of  the  said  contract 
or  policy  of  insurance;  and  the  plaintiff  avers  that  it  then  and 
there  became  and  was  the  duty  of  the  defendant  to  pay  to  the 

plaintiff  the   sum  of  $ ,    in   accordance   with   the 

terms  of  said  contract  or  policy  of  insurance;  nevertheless  the 
defendant,  though  often  thereunto  requested,  has  not  paid  to 
the  plaintiff  the  said  amount,  or  any  part  thereof,  but  refuses 

so  to  do,  to  the  damage  of  the  plaintiff  of  $ ,  and 

therefore  she  brings  her  suit. 

b 

For  that  whereas,  on,  to  wit, ,  19 . . ,  the  defend- 
ant made  its  policy  of  insurance,  called  a  benefit  certificate, 
and  delivered  the  same  to  S,  the  father  of  these  plaintiffs,  and 
who  was  then  living,  which  policy  or  benefit  certificate  is  in 
words  and  figures  as  follows:  (Copy  benefit  certificate,  with  all 
endorsements). 

That  said  S  became  a  member  of  No ,  of 

, ,  of  the  order  of afore- 
said, and  became  a  contributor  to  its  beneficiary  fund,  and  fully 
complied  with  all  the  laws,  rules  and  regulations  of  said  order, 
and  all  the  conditions  in  said  certificate,  and  was  in  good  stand- 


448  ANNOTATED  FORMS  OF  PLEADING  AND   PRACTICE 

ing  in  said  order  at  the  time  of  his  death,  Avhioh  occurred  on  the 

day  of ,  19.  . .     That  in  accordance 

with  its  promises  in  said  certificate,  the  said  defendant  has  now 

become  obligated  to  pay  to  these  plaintitfs  the  sum  of 

($ )  dollars  out  of  its  beneficiary  fund ;  neverthe- 
less the  defendant,  although  duly  notified  of  the  death  of  said 
S,  and  often  requested  to  make  such  payinent  to  these  plaintiffs, 
has  not  paid  said  amount,  or  any  part  thereof,  and  refuses  so 
to  do,  to  the  damage,  etc. 

c 

For  that  whereas,  the  defendant  is  and  has  been,  at  the  time 
herein  mentioned,  and  before  and  since,  a  corporation  duly 
organized,  existing  and  doing  business  under  the  laws  of  the 

state  of  Illinois,  with  its  office  in  the  city  of ,  in 

said  county,  incorporated  for  the  purpose  of  providing  life  insur- 
ance or  death  benefits  to  the  beneficiaries  of  members  of  the 

police  force  of  said  city  of    ,  upon  payment  of 

certain  assessments  and  compliance  with  certain  requirements 
and  conditions. 

That  on,  to  wit,  the   day  of   , 

19. .,  plaintiff's  intestate  and  husband ,  was 

a  member  of  the  police  force  of  the  city  of  ,  on 

active  duty  and  in  good  standing;  that,  on,  to  wit,  the  date 

aforesaid,  in  consideration  of  the  sum  of dollars 

by theretofore  paid  to  said  defendant  association, 

and  the  further  payment  by  him,  to  wit,  of dol- 
lars upon  the  death  of  each  member  of  said  defendant  associa- 
tion, as  provided  by  its  by-laws,  and  also  his  compliance  with 
the  constitution  and  by-laws  of  said  defendant  association,  the 
said  defendant  association  executed  and  delivered  to  the  said 

its  certain  agreement  in  Avriting  or  certificate, 

numbered ,  in  and  by  wiiich,  among  other  things, 

it  agreed  to  pay,  upon  the  death  of  said ,  within  • 

days  after  satisfactory  evidence  thereof,  to  the 

plaintiff,  the  wife  of  said  ,   dollars. 

The  plaintiff  further  avers  that  she  is  the  beneficiary  named 

in  said  certificate  at  its  date  and  has  been  the  wife  of  said 

;  that  on,  to  wit,  the day  of ,  . , 

19 .  . ,  said  suddenly  and  without  explanation 

left  and  disappeared  from  his  home, ,  and  that  he 

has  been  unaccountably  absent  ever  since;  that  he  has  never 
returned  or  been  heard  of  since  said  departure,  although  plain- 
tiff has  made  diligent  and  continuous  search  for  him;  that  said 

plaintiff  has  been  and  is  wholly  unable  to  find  said , 

or  to  get  any  clue  of  him ;  that  on,  to  wit,   ,  said 

unheard  of  absence  of  said   had  continued  seven 

years,  and  that  at  the  end  of  said  seven  years  said 

was   presumed   by   law    to   be   dead ;    that   said    

departed  this  life  on,  to  wit, ;  that  on,  to  wit,  the 


ASSUMPSIT  449 

day  of ,  19 . . ,  said  plaintiff 

gave  said  defendant  full,  accurate,  and  specific  notice  in  writ- 
ing, verified  by  her  oath,  of  said 's  said  disappear- 
ance, the  date  thereof,  and  his  said  continued  and  unheard  of 
absence  for  more  than     seven  years,  ever  since,  and  requested 

the  defendant  association  to  pay  her,  as  said   's 

beneficiary,  the  said  sum.  of dollars,  named  in  said 

certificate ;  ^^  that  at  the  time  of  said 's  death  the 

defendant   association    consisted    of   more    than    

members;  that  all  dues  and  assessments  under  and  in  compli- 
ance with  said  certificate  and  defendants'  constitution  and  by- 
laws have  been  duly  and  reasonably  paid  hy  and  on  behalf 

of  said    up  to  and  including  the  dues  for  the 

month  of    ,   amounting  to    dollars ; 

that  the  said   and  the  plaintiff,  his  beneficiary, 

have  in  all  respects  and  things  complied  with  the  constitution, 
by-laws  and  said  certificate,  and  did  all  things  required  of 
them  to  be  done  by  the  terms  thereof;  that  at  the  time  of  said 

's  death,  he  was  a  member  in  good  standing  in 

said  defendant  association;  and  that  by  reason  of  the  premises 

the  plaintiff  is  entitled  to  be  paid  the  said  sum  of 

dollars,  with  interest  thereon  at  the  rate  of   per  cent 

per  annum,  from  the  day  of , 

19 . . ,  and  also  to  recover  the  said  sum  of dollars 

and   cents,  the  payment  of  ,  as  an 

overpayment  and  unearned  premium  with  like  interest  from  its 
date.    Nevertheless,  etc. 

d 

For  that  whereas,  heretofore,  to  wit,  on  the day 

of ,  19 .  . ,  at ,  in county, 

said  defendant  made  its  certain  policy  of  insurance,  sometimes 
called  an  individual  accident  insurance  certificate,  also  called 
a  certificate  of  membership,  and  delivered  the  same  to  F,  then 
living,  which  said  policy  of  insurance,  sometimes  called  a  certifi- 
cate of  membership,  was  and  is  in  the  words  and  figures  follow- 
ing, that  is  to  say:     (Set  out  certificate). 

That  thereupon  the  said  F  was  duly  and  properly  admitted 
to  membership  in  said  association,  and  in  consideration  of  said 
membership,  representations  and  warranties  made  to  it  by  the 

application  for  said  membership  and  the  sum  of 

($ )  dollars,  paid  by  the  said  F,  and  the  further  payment 

of  other  sums  of  money  as  they  became  due  under  calls  of  said 
defendant  association,  the  said  defendant  association  did  prom- 
ise and  agree  to  and  with  the  said  F  to  pay  or  cause  to  be  paid 
to  the  plaintiff  within  ninety  days  after  satisfactory  proof  of 

87  Policemen's   Benevolent   Ass'n. 
V.  Kyce,  213  111.  9,  19  (1904). 


450  ANNOTATED   FORMS   OF   PLEADING   AND    PRACTICE 

the  death  of  the  said  F  received  at  the  office  of  said  defendant 
association  and  approved  by  tlie  directors  of  said  association, 

the  sum  of ($ )  dollars ;  and  that  it 

was  provided  and  agreed  by  said  F  in  said  application  for  mem- 
bership in  the  words  following,  to  wit:     (Set  out  agreement). 

And  the  plaintili'  uvcis  that,  on,  to  wit,  the day 

of ,  19-  •,  the  said  insured,  F,  died  from  the  effects 

of  poison  taken  by  him  accidentally  and  in  the  place  and  stead 
of  distilled  water,  which  said  F  intended  to  take  and  believed 
he  was  taking  at  the  time,  and  that  he  did  not  die  from  hernia, 
orchitis,  fits,  vertigo,  somnambulism,  nor  of  any  bodily  injury 
happening  or  disability  resulting  directly  or  indirectly  in  con- 
secjuence  of  disease,  or  bodily  inlirmities,  or  of  poison  in  any 
way  taken,  administered,  absorbed  or  inhaled,  within  the  mean- 
ing of  said  words  as  used  in  his  said  application  for  member- 
ship;  nor  did  he  die  of  any  surgical  operation  or  medical  treat- 
ment ;  nor  did  the  said  F  die  from  any  injury  which  happened 
to  him  while  under  the  influence  of  intoxicating  drinks  or  nar- 
cotics, or  in  consequence  of  having  been  under  the  influence 
thereof;  or  while  violating  or  in  consequence  of  having  vio- 
lated the  rules  provided  by  any  company  or  corporation  or 
of  the  law  of  the  state. 

And  the  plaintiff  further  avers  that  all  assessments  or  pay- 
ments and  calls  due  upon  said  membership  certificate  or  policy 
of  insurance  due  at  and  before  the  time  of  the  death  of  the 
said  F,  were  duly  and  properly  paid  to  the  defendant  associa- 
tion, and  that  the  said  F  kept  and  performed  all  things  in  the 
said  policy  of  insurance  or  certificate  of  membership  on  his 
part  to  be  kept  or  performed. 

And  the  plaintiff  further  avers  that  the  said  defendant  asso- 
ciation, after  the  death  of  the  said  F,  waived  the  furnishing 
by  the  plaintiff  of  any  proof  of  the  death  of  the  said  F, 

And  the  plaintiff  further  avers  that  she,  the  plaintiff,  has 
observed  and  kept  all  things  in  the  said  policy  of  insurance  con- 
tained on  her  part  to  be  kept  and  performed ;  yet,  notwithstand- 
ing which,  the  defendant,  although  often  requested  so  to  do, 
has  not  kept  and  performed  its  said  promises  and  undertakings 
in  the  said  policy  contained  and  by  it  to  be  kept  and  performed, 

and  has  not  paid  to  the  plaintiff  the  said  sum  of 

dollars,  or  any  part  thereof,  and  refuses  so  to  do,  to  the  dam- 
age, etc. 

e 

For  that  whereas,  on,  to  wit,  the day  of , 

19 .  . ,  in  the  city  of and  county  of , 

said  defendant  made  its  certain  certificate  and  delivered  the 
same  to  B,  then  in  life,  but  since  deceased,  at.  to  wit,  the  city 
of  ,  on,  to  wit,  the  day  aforesaid,  and  in  consid- 
eration of  the  payment  of  an  examination  fee  and  all  dues  and 
assessments  required  by  the  by-law^s  of  said  defendant,  and  fur- 


ASSUMPSIT  451 

ther  payment  by  B  of  the  various  sums  required  to  be  paid  to 
said  defendant,  promised  the  said  B,  in  the  terms  of  the  said 
certificate,  and  the  conditions  therein  expressed  and  thereto 
annexed,  which  said  certificate  and  conditions  here  follow  in 
the  words  and  figures  following,  to  wit:  (Set  forth  bene- 
ficiary's certificate). 

And  plaintiff  avers  that  the  said  B  departed  this  life  at  the 

city  of and  said  county,  on,  to  wit,  the 

day  of ,  19.  .,     He  further  avers  that  the  said  B 

had  complied  with  all  and  singular  the  terms  and  conditions  of 
said  certificate  by  it  required  to  be  performed,  and  fully  com- 
plied with  all  the  laws,  rules  and  regulations  of  the  said  order 

which  were  at  any  time  between  the day  of , 

19 . . ,  and  the day  of ,  19 .  . ,  in  force 

in  said  order,  up  to  the  time  of  his  death ;  and  plaintiff  further 
avers  that  the  said  B  was  at  the  time  of  his  said  demise  a  member 
in  good  standing  of  said  defendant  order,  and  that  the  said 
defendant  has  had  satisfactory  evidence  of  the  death  of  the  said 
B,  and  that  the  said  A,  the  beneficiary  by  the  terms  of  the  said 
certificate,  through  his  legal  representative,  has,  in  all  respects, 
complied  with  all  the  terms  and  conditions  of  said  certificate 
upon  him  by  it  imposed ;  and  the  plaintiff  further  avers  that  no 
other  certificate  has  been  issued  at  the  request  of  the  said  B 

but  the  one  herein  issued  on ;  and  the  plaintiff 

brings  said  certificate  into  court  here  and  offers  to  defendant 
the  same  in  accordance  with  the  laws  of  said  defendant  order; 
and  plaintiff  avers  that  the  said  A,  being  a  minor  son  of  the 
said  B,  is  the  same  as  the  beneficiary  A  named  in  said  certifi- 
cate ;  that  on  the day  of ,  19 .  . ,  the 

plaintiff  was  appointed  by  the court  of 

county,  conservator  of  the  estate  of  the  said  B ;  and  that  plain- 
tiff thereupon  duly  qualified  as  such  conservator  and  entered 
upon  the  discharge  of  such  duties,  which  will  more  fully  appear 

from    the    record    of    said    court ;    nevertheless, 

although  the  said  beneficiary  A  and  the  plaintiff  for  him,  has 
kept  and  performed  all  things  in  the  said  certificate  on  his 
part  to  be  kept  and  performed,  the  defendant  has  not  yet  paid 

to  the  plaintiff  the  said  sum  of ($ )  dollars 

or  any  part  thereof,  but  refuses  so  to  do,  and  there  is  now  due 
and  owing  to  the  plaintiff  as  conservator  of  the  said  A  from  the 

defendant    the    sum    of    ($ )    dollars,    for 

which  he  brings  suit,  etc. 

C,  conservator  of  the  estate  of  A, 

Plaintiff. 

By , 

his  attorney. 
1039  Employers'  liability,  Narr.  (111.) 

For  that  whereas,  on  the day  of , 

19..,  in  the  city  of    and  county   and  state  of 


452  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

,  said  defendant  made  its  policy  of  insurance  or 

contract  of  indemnity,  and  delivered  the  same  to  said  plaintiff, 

and  thereby  then  and  there,  in  consideration  of  

dollars  to  it  paid  by  the  plaintiff,  did  agree  to  indemnify  said 
plaintiff  against  loss  from  the  liability  imposed  by  law  upon 
said  plaintiff'  for  damages  on  account  of  bodily  injuries  or  death 
accidentally  suffered  by  any  employee  or  employees  of  said 
plaintiff  while  employed  by  said  plaintiff  in  and  about  its  fac- 
tory or plant,  located  at , 

county,    ,    excepting,   however,   certain   employees 

therein  named,  in  a  certain  condition,  to  wit,  condition  "A"  of 

said  policy,  for  a  period  one  year  from  the  day 

of ,  noon,  to  the day  of , 

noon,  as  will  more  fully  appear  from  the  policy,  which  is  ready 
to  be  produced  in  court,  and  which  said  policy  of  insurance,  or 
contract  of  indemnity,  was  and  is  in  the  words  and  figures  fol- 
lowing, to  wit:     (Set  forth  policy). 

And  thereupon,  to  wit,  on  the day  of , 

19..,  in  consideration  of  the  premises,  said  plaintiff,  at  the 
special  instance  and  request  of  said  defendant,  then  and  there 

paid  to  said  defendant,  the  sum  of dollars, 

as  a  premium  for  the  insurance  and  the  indemnity  aforesaid; 
and  said  defendant,  by  said  policy  of  insurance,  or  contract  of 
indemnity,  did  undertake  and  faithfully  promise  and  agree  to 
indemnify,  make  good  and  satisfy  unto  said  plaintiff,  all  of  such 
loss  or  damages  as  it  might  sustain,  or  be  compelled  to  pay,  not 
exceeding,  however,  the  sum  of dollars,  for  injur- 
ies to,  or  death  of  any  one  person  covered  by  said  policy  of  insur- 
ance, or  contract  of  indemnity,  on  account  of  any  accident  which 
should  happen  during  the  period  said  policy  of  insurance,  or 
contract  of  indemnity  was  in  force,  resulting  in  bodily  injury 
or  death  of  any  such  person  so  employed  by  said  plaintiff  in 
and  about  its  said  plant,  and  covered  by  said  policy  of  insur- 
ance, or  contract  of  indemnity. 

And  the  plaintiff  avers  that,  on,  to  wit,  the day 

of ,  19. .,  and  "while  said  policy  of  insurance 

or  contract  of  indemnity  was  in  full  force  and  effect, , 

who  was  then  employed  by  said  plaintiff  as  a  charger  in  and 

about  its  said  plant,  at ,  in  the  county  of 

and  state  of  ,  said   being  then  and 

there  one  of  the  employees  of  said  plaintiff,  whose  compensation 
was  included  in  the  estimate  set  forth  in  said  schedule  and 
policy  of  insurance,  and  not  being  of  the  employees  or  class 
of  employees  excepted  from  the  liability  of  said  policy  of  insur- 
ance, as  provided  in  said  condition  "A"  of  said  policy,  sus- 
tained a  bodily  injury  for  which  said  plaintiff  then  and  there 

became  liable  for  damages  under  the  law ;  that  said 

sustained  said  injury  while  engaged  in  the  work  of  said  plaintiff 
in  its  said  plant  in  the  place  and  at  the  time  last  aforesaid. 

And  by  reason  of  such  injury  so  sustained,  the  said , 


ASSUMPSIT  453 

afterwards,  to  wit,  on  the day  of , 

19 . . ,  brought  suit  in  the  court  of  said 

county, ,  to  the term, 

19.  .,  of  said  court,  against  the  plaintiff  herein,  to  recover  dam- 
ages for  the  injuries  sustained  by  him  as  aforesaid.  And  said 
plaintiff  avers  that  said  defendant,  well  knowing  that  it  had 
not  been  given  written  notice  by  said  plaintiff  of  such  injury, 

and  claim  for  damages  of  said against  the 

plaintiff  herein,  as  provided  in  and  by  condition  "B"  of  said 
policy  of  insurance  or  contract  of  indemnity ;  and  well  knowing 
that  after  the  said  suit  was  brought  against  said  plaintiff  by 
said to  enforce  said  claim  for  damages  by  rea- 
son of  such  accident  and  injuries  resulting  therefrom,  so  re- 
ceived by  him,  and  arising  from  a  liability  covered  by  said 
policy  of  insurance  or  contract  of  indemnity,  that  said  plain- 
tiff had  neglected  and  failed  to  forward  to  the  home  office  of 
said  defendant  every  summons  and  process  as  soon  as  the  same 
was  served  upon  the  plaintiff,  as  provided  in  and  by  condition 
''C"  of  said  policy;  with  full  knowledge  of  the  above  facts, 
and  of  the  failure  on  the  part  of  said  plaintiff  to  give  the  writ- 
ten notice  of  the  said  injury  to  said ,  as  pro- 
vided in  and  by  said  condition  of  said  policy  of  insurance,  and 
with  full  knowledge  of  the  fact  that  the  plaintiff  herein  had 
failed  to  forward  every  summons  or  process  as  soon  as  the  same 
was  served  upon  said  plaintiff'  to  the  home  office  of  said  defend- 
ant, as  provided  in  and  by  said  condition  of  said  policy  of  insur- 
ance, the  said  defendant  wholly  waived  such  notices  and  said  pro- 
visions of  said  policy  of  insurance  and  contract  of  indemnity,  and 
began  a  negotiation  for  a  settlement,  and  assumed  and  took  upon 
itself  the  management,  control  and  defense  of  said  suit,  and  ap- 
peared in  said  court,  in  said  cause,  in  the  name  and  for  and  on 
behalf  of  the  plaintiff'  herein ;  that  by  reason  of  said  defendant 
having  waived  the  giving  of  the  notice  as  provided  in  said  condi- 
tion of  said  policy  of  insurance,  and  assuming  and  undertaking 
the  defense  of  said  suit,  said  plaintiff  was  prohibited  in  and  by 
condition  "D"  of  said  policy  of  insurance,  from  interfering  in 
any  negotiations  for  a  settlement,  or  legal  proceedings  in  said 

cause ;  that,  on,  to  wit,  the day  of , 

19 . . ,  the  same  being  one  of  the  judicial  days  of  the 

term,  19 .  . ,  of  said  court,  after  a  trial  of  the  issues,  a  final  judg- 
ment was  rendered  in  said  suit  against  the  plaintiff  herein  and 

in  favor  of  said ,  on  account  of  said  injuries, 

so  sustained  by  him  as  aforesaid,  for  the  sum  of 

dollars  and  costs  of  said  suit. 

And  said  plaintiff  further  avers  that  afterward,  on,  to  wit, 
the day  of 19 .  . ,  said  defend- 
ant waiving  and  ignoring  said  conditions  in  said  policy  and  the 
notice  required  in  and  by  said  conditions,  further  appeared  in 
said  court  in  said  cause  in  the  name  of  the  plaintiff  herein, 
under  and  ly  virtue  of  the  provisions  in  said  policy  of  insur- 


454  ANNOTATED   FORMS  OF  PLEADING  AND  PRACTICE 

ance  or  contract  of  indemnity,  then  and  there  excepted  to  the 
judgment  so  rendered  by  said  court,  and  prayed  an  appeal  from 
the  judgment  of  said  court,  to  the  appellate  court,  in  and  for 

the    district  of  the  state  of   Illinois,  Avhich  said 

appeal  was  by  said  court  allowed  and  granted,  upon  the  plaintiff 
herein  giving  an  appeal  bond  in  the  sum  of  dol- 
lars, to  hv  filed  with  and  approved  by  the  clerk  of  said 

court,  wifhin days  and  presenting  a  bill  of  excep- 
tions  within    days   after   the   rendition   of   such 

judgment.     And  afterwards,  on,  to  wit,  the  day 

of ,  19 . . ,  and  within days 

after  the  rendition  of  said  final  judgment,  said  plaintiff,  at  the 
special  instance  and  request  of  the  defendant  herein,  and  pur- 
suant to,  and  in  accordance  with  said  order  granting  said  appeal, 

caused  to  be  filed  in  the  office  of  the  clerk  of  said  

court,    an   appeal   bond   in   said    cause,   in   the   penal   sum   of 

dollars,   which  said  bond  was  approved  by  the 

clerk  of  said  court  and  then  and  there  became  the  appeal  bond 
required  by  said  order  of  court.  All  of  which  said  proceedings 
and  doings  in  said  cause  will  more  fully  appear  from  the  rec- 
ords and  files  in  said  cause  now  remaining  on  file  in  the  office 
of  the  clerk  of  said  court,  reference  being  had  thereto  for  greater 
certainty. 

And  said  plaintiff  avers  that  under  the  conditions  of  said 
policy  of  insurance,  or  contract  of  indemnity,  it  became  and 
was  the  duty  of  said  defendant,  after  it  had  waived  said  notice 
provided  in  said  policy,  and  assumed  and  took  upon  itself  the 
defense  of  said  suit,  and  after  said  plaintiff  had  been  barred 
from  appearing  in  said  suit,  under  the  conditions  of  said  con- 
tract, by  reason  of  said  defendant  having  waived  such  notice, 
and  assumed  and  undertook  the  defense  of  said  suit,  either  to 
pa}^  said  judgment,  or  to  prosecute  and  perfect  said  appeal  in 
said  appellate  court  and  to  indemnify  and  save  the  plaintiff 
from  paying  said  judgment.  Yet,  the  said  defendant,  not  re- 
garding its  duty  in  that  behalf,  failed,  neglected  and  wilfully 
refused  to  pay  said  judgment,  or  prosecute  and  perfect  said  ap- 
peal.   And  afterwards,  to  wit,  at  the term, 

19. .,  of  said  appellate  court,  on  motion  of  said  , 

said  appeal  was  dismissed  by  said  court,  and  judgment  ren- 
dered against  the  plaintiff  herein,  and  in  favor  of  said 

for  the  amount  of  said  judgment,  to  wit, dollars, 

together  with  5  per  cent  damages,  and  cost  of  suit. 

And  afterwards,  to  Avit,  on  the  day  of , 

19 .  . ,  said commenced  a  suit  in  the 

court  of  said county, ,  to  the 

term,  19..,  against  the  plaintiff  herein,  on  said  appeal  bond, 

to  recover  said  judgment,  damages  and  costs,  and  on  the 

day  of ,  19. .,  the  same  being  one  of  the  judicial 

days  of  said  term  of  court,  final  judgment  was  entered  in  said 
suit,  against  the  plaintiff  herein,  and  in  favor  of  said , 


ASSUMPSIT 


455 


for  the  amount  of  said  judgment,  damages  and  costs,  amount- 
ing to,  to  wit,  dollars  and 

cents;  and  thereupon  the  said caused  an  execution 

to  be  issued  out  of  said  court,  directed  to  the  sheriff  of  said 
county    commanding  him  that  of  the  goods, 
chattels,'  lands' and  tenements  of  the  plaintiff  herein,  he  make 
the  amount  of  said  judgment  and  cost. 

And  afterwards,  on  to  wit,  the day  ot • . ., 

19  the  plaintiff  herein  satisfied  said  judgment  and  execution, 
bv  payment  to  said  sheriff  of  the  full  amount  of  said  judgment 
and  cost;  all  of  which  will  more  fully  appear  from  the  records 
and  files  in  said  cause,  now  remaining  in  the  ofdce  ot  the  clerk 

of  said         court.  . 

And  said  plaintiff  further  says,  that  although  it  has  m  all 
things  conformed  itself  to  and  kept  and  observed  all  and  singu- 
lar the  said  acts,  stipulations,  conditions,  matters  and  things, 
which  on  its  part  were  to  be  observed  and  performed  according 
to  the  form  and  effect  of  said  policy  of  insurance  or  contract 
of  indemnity,  and  all  the  conditions  thereto  annexed,  except  the 
eivinc^  of  the  written  notice  of  said  injury  according  to  said 
Jondilion  "B"  of  said  policy,  and  the  forwarding  of  every 
summons  or  process,  as  soon  as  the  same  was  served  upon  it 
as  provided  in  and  by  condition  "  C  "  of  said  policy ;  and  although 
it  has  sustained  loss  from  the  liability  imposed  by  law  upon 
said  plaintiff  for  damages  on  account  of  bodily  injury  accident- 
ally sustained  while  said  policy  of  insurance,  or  contract  of  in- 
demnity, was  in  force,  by  the  said who  was  then 

and  there  an  employee  of  the  plaintiff,  covered  by  said  policy 
of  insurance,  and  not  of  either  kind  or  class  of  employees  men- 
tioned incondition  ''A"  of  said  policy  who  were  excepted  from 
the  liability  thereunder,  and  who  sustained  said  injury  at  the 
time  and  in  the  manner  aforesaid  while  employed  m  the  said 

factory  or  plant  of  said  plaintiff;  and  although 

said  defendant  waived  the  giving  of  the  written  notice  of  such 
iniurv  as  provided  by  condition  ''B"  of  said  policy  and  the 
forwarding  of  every  summons  or  other  process  m  said  cause  as 
soon  as  the  same  was  served  upon  said  plaintiff,  and  began  a 
neootiation  for  a  settlement,  and  assumed  and  took  upon  itselt 
the  responsibility,  control,  management  and  defense  of  said  suit 
under  said  policy,  well  knowing  that  it  had  not  been  notified 
of  said  injurv,  and  of  the  pendency  of  said  suit,  according  to 
the  terms  thereof,  and  waiving  all  irregularities  in  the  giving 
of  such  notice  and  compliance  by  said  plaintiff  with  the  condi- 
tions of  said  policy  of  insurance  aforesaid;  and  although  said 
plaintiff  sustained  damages  in  the  manner,  and  to  the  amount 
aforesaid;  yet,  said  defendant,  though  often  requested  has  not 
paid  to  said  plaintiff,  the  said  sum  of  money,  or  any  part  thereof 
but  has  refused  and  still  refuses  so  to  do.  to  the  damage  of  said 
plaintiff  of  •  •  •  dollars,  and  therefore  it  brings  this  suit. 


456  ANNOTATED  FORMS  OF  PLEA.D1NG  AND  PRACTICE 

1040  Endowment,  Narr.  (Md.) 

For  that  on  the day  of 

19. .,  defendant  was  a  corporation  of  the  state  of , 

duly  incorporated  under  the  laws  of  said  state  and  doing  busi- 
ness and  authorized  to  do  business  as  such  corporation  in  the 

state  of    ,  and  with  authority  under  its  charter 

to  utter  and  issue  insurance  upon  the  lives  of  persons  residing 

and  being  in  the  state  of ,  and  that  on  the  said 

day  of ,  1!) . . ,  in  consideration 

of  the  payment  of  the annual  premium  of 

dollars  made  by  a  certain ,  of county, 

,  paid  defendant,  and  of  the  application  of  the 

said for  a  policy  of  insurance  and  the  under- 
taking by  the  said to  pay  a  like  amount  of 

dollars  upon  each day  of , , 

thereafter  until  full  years'  premi- 
ums shall  have  been  paid,   or  until  the  prior  death  of  said 

,  the  said  defendant  made  and  executed  its  policy 

of  insurance  in  writing,  number of  the  following 

effect,  viz. : ,  in  consideration  of  the  annual  prem- 
ium of dollars  (the  receipt  of  which  was  thereby 

acknowledged),  and  the  payment  of  a  like  amount  upon  each 

•  •  •  • day  of and thereafter 

until full  years'  premiums  shall  have  been  paid, 

or  until  the  prior  death  of  the  insured,  the  ,  of 

,  promised  to  pay  at  the  home  office  of  the  com- 
pany in  the  city  of    ,  to    ,  wife  of 

,  of county,  of state, 

of therein  called  the  insured,  on  the 

day  of ,  if  the  insured  be  then  living,  or  upon  re- 
ceipt at  said  home  office  of  due  proof  of  the  prior  death  of  the 

insured,  to  his  said  wife, ,  the  beneficiary,  with  the 

right  of  revocation, dollars,  less  any  indebtedness 

thereon  to  the  company  and  any  unpaid  portion  of  the  premium 
of  the  then  current  policy  year,  upon  the  surrender  of  the  policy 
properly  receipted ;  and  said  plaintiff  avers  that  said  defendant 

thereby  insured  the  life  of  the  said  in  the  said 

sum  of dollars,  payable  to  said  plaintiff,  his  wiie, 

upon  the  death  of  the  said ,  during  the  continuance 

of  the  said  policy  and  before  the day  of , 

upon  receipt  at  the  home  office  of  said  company  of  due  proof 
of  the  death  of  the  insured. 

And  said  plaintiff  avers  that  on  or  about  the  

day  of ,  the  said died  (and  his  death 

was  not  caused  by  any  of  the  causes  exempted  in  said  policy)  ; 
and  thereafter  in  due  time  as  required  by  said  policy,  due  proof 
of  the  death  of  the  insured  was  made,  delivered  to  and  accepted 
by  the  home  office  in ,  by  the  plaintiff,  the  bene- 
ficiary named  in  the  policy  of  insurance  (no  revocation  and 


ASSUMPSIT  457 

no  change  of  beneficiary  having  been  made  therein),  in  accord- 
ance with  the  requirements  of  the  said  policy  of  insurance ;  and 

that  the  said during  his  lifetime  paid  all  the  premiums 

and  made  all  of  the  payments  required  by  said  policy  and  fully 
complied  with  all  the  stipulations  and  obligations  on  his  part 
therein  required  of  him  by  the  terms  of  said  policy;  whereby 
said  plaintiff  avers  that  under  said  policy,  undertaking  and 
writing  aforesaid,  said  defendant  then  and  there  became  liable 

to  pay  to  her  the  said  sum  of dollars,  as  specified 

in  said  policy  of  insurance,  and  that  she  did  fully  perform  every 
stipulation,  requirement  and  thing  required  of  her  by  the  said 
policy  as  the  beneficiary  therein  to  entitle  her  to  recover  from 

said  defendant  the  said  sum  of  dollars ;  but  the 

defendant,  wholly  unmindful  of  its  duty  in  the  premises  and 
its  obligation  under  said  writing,  refused  to  pay,  and  has  not 

paid  to  said the  said  sum  of dollars, 

or  any  part  thereof,  or  any  interest  thereon,  although  the  plain- 
tiff has  made  frequent  demands  upon  said  defendant  to  pay  the 
same;  and  therefore  the  plaintiff  brings  this  suit  and  claims 
dollars. 

(Virginia) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the 

day  of   ,  19..,  the  said  defendant  caused  to  be 

made  a  certain  policy  of  insurance  in  writing  purporting  thereby 
and  containing  therein,  that  in  consideration  of  the  quarter 
annual  premium  of  $ ,  receipt  of  which  the  defend- 
ant acknowledged,  and  the  payment  of  a  like  amount  upon  the 

day  of , ,  ••, ••••• 

and thereafter,  until  twenty  full  premiums  should 

have  been  paid,  or  until  the  prior  death  of  the  insured,  the  said 

defendant  undertook  and  promised  ,  the  insured, 

under  said  policy  that  it,  the  said  defendant,  would  pay  to 

the  plaintiff,    ,   the  sum  of  $ upon 

due  proof  of  the  prior  death  of  said ,  the  insured, 

who  was  then  and  there  alive,  provided  the  said 

should  continue  to  pay  the  said  quarterly  premiums  as  they 
fell  due  as  hereinabove  set  out  and  in  said  policy  contained, 
and  to  the  same  annexed  were  and  are  sundry  other  provisos, 
conditions,  prohibitions  and  stipulations,  as  by  the  original  policy 
aforesaid,  which  is  filed  herewith,  will  more  fully  and  at  large 
appear. 

And  the  said  plaintiff  says  that  after  the  making  of  said 

policy  as  aforesaid,  by  the  defendant,  to  wit,  on  the 

day  of ,  19  •  • ,  the  said died,  whereof 

afterwards,  to  vnt,  on  the  day  of , 

19 .  . ,  due  and  sufficient  proof  was  made  to  the  said  defendant, 
in  conformity  to  the  terms  and  conditions  of  the  said  policy. 
And  the  said  plaintiff  further  says,  that  the  said , 


458  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

in  his  lifetime,  did  perform,  fulfill,  observe  and  comply  with, 

and  the  said  plaintiff  since  the  death  of  the  said , 

has  performed,  fulfilled,  observed  and  complied  with  each  and 
all  of  the  conditions,  provisos,  and  stipulations  in  the  said  policy 
contained,  or  to  the  same  annexed,  on  the  part  and  behalf  of  the 

said    ,  in  his   lifetime,   and  of  the  said  plaintiff, 

,  since  the  death  of  the  said ,  to  be 

performed,  fulfilled,  observed  and  complied  with,  and  neither 

the  said in  his  lifetime,  nor  the  said , 

plaintiff',  has  violated  any  of  the  prohibitions  in  said  policy 
contained,  according  to  the  form  and  effect,  true  intent  and 
meaning  of  the  said  policy. 

Yet  the  said  plaintiff  says,  that  altliough months 

have  elapsed  after  due  and  sufficient  proof  was  made,  as  afore- 
said, to  the  said  defendant,  of  the  death  of  the  said , 

the  said  defendant  has  not  as  yet  paid  to  the  said  plaintiff  the 

said  sum  of  $ ,  but  the  same  and  every  part  thereof, 

has  wholly  refused  to  pay  and  hath  always  refused  to  pay, 
contrary  to  the  force  and  effect  of  the  said  policy.  And  the  said 
plaintiff  further  says  that  the  said  defendant  has  not  kept  wdth 
the  plaintiff'  the  agreement  aforesaid,  contained  in  said  policy 
made  in  this  behalf  as  aforesaid,  but  the  said  defendant  has 
broken  the  same,  and  to  keep  same  with  the  said  plaintiff  hath 
hitherto  wholly  refused,  and  still  doth  refuse. 

To  the  damage  of  the  plaintiff,  $ 

And  therefore  she  brings  her  suit. 

1041  Life  and  accident,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the    

day  of 19 . . ,  at,  to  wit,  in  the  city  of 

,    county   aforesaid,    the   said   defendant   entered 

into  a  certain  policy  of  insurance,  instrument  and  an  agree- 
ment with  the  plaintiff  in  the  words  and  figures  following,  to 
wit:  (Set  forth  policy  of  insurance  and  agreement  of  accident 
insurance)  ;  and  upon  the  back  of  said  instrument  or  policy  of 
insurance  appears  the  following:  (Set  forth  notice);  wherein 
and  whereby  the  said  defendant  for  a  valuable  consideration 

did  insure  the  life  of  the  said  H  of ,  in  the  county 

of ,  and  state  of ,  designated  in  the 

said  policy  as  the  insured,  in  the  sum  of ($ ) 

dollars  for  the  term  of  his  natural  life  from  and  after  the 
date  thereof ;  w^hich  said  sum  should  be  paid  at  the  office  of 
the  said  company  in ,  ,  to  the  plain- 
tiff, wife  of  the  said  insured,  within  ninety  days  after  due  no- 
tice and  direct  evidence  of  the  death  of  the  said  insured,  dur- 
ing the  continuance  of  said  policy. 

And  the  said  plaintiff  avers  that  the  said  insured,  H,  during 
his  lifetime  did  in  all  things  conform  himself  to,  observe,  per- 
form and  keep  all  things  in  the  said  policy  of  insurance  on  his 


ASSUMPSIT  459 

part  and  behalf  to  be  observed  and  performed,  according  to 
the  form  and  effect  of  the  said  policy  of  insurance. 

And  the  plaintiff  further  avers,  that  the  saiil  11  paid  iiU  llie 
instalments  of  premium  provided  by  the  said  policy  to  be  paid 
by  him  from  the  date  of  the  said  policy  up  to  and  including 

the  instalment  of  premium  falling  due  thereon  on  the 

day   of    ,   19..,   and  all   the  sums  due  upon   the 

contract  of  accident  insurance  annexed  to  the  said  })()liey  from 
the  date  thereof,  up  to  and  including  the  amount  due  tliereon 
on ,  1 

And  the  plaintiff  further  avers  that,  on,  to  wit,  the 

day  of ,  19. .,  the  said  H,  without  the  knowledge 

and  consent  of  the  said  plaintiff',  did  execute  and  deliver  to  the 

said  defendant,  in  payment  of  the  premium  of   

dollars,  due  on  that  day  on  the  said  policy  of  life  insurance, 

and  for  the  further  sum  of ,  due  on  said 

day  of ,  19.  .,  on  said  contract  of  accident  insurance, 

annexed  to  the  said  policy,  making  the  sum  of tlollars, 

his  promissory  note,  which  said  note  tlie  defendant  tlien  and  tiiere 
accepted,  as  payment  of  tlie  said  instalment  of  preiuiuiu,  due 
on  said  life  policy,  and  on  said  conli-act  of  accident  insurance, 
and  as  full  payment  of  the  premium  due  on  said  life  policy, 

and  said  contract  of  accident  insurance,  on  said   

day  of ,  19.  .,  and  each  of  the  same  and  the  whole 

thereof,  and  upon  the  acceptance  of  said  note  by  the  said  defend- 
ant for  such  premium  as  aforesaid,  tiie  said  defendant  did 
then  and  there  deliver  to  the  plaintiff  its  properly  executed 
premium  receipt,  provided  for  in  the  said  policy,  for  the  full 
payment  of  the  said  premium,  due  on  the  said  life  policy  and 

contract  of  accident  insurance,  due  on  said   day 

of   ,  19.  .,  for  the  six  months  then  next  ensuing, 

and  ending  the day  of ,  19 .  . ,  which 

said  receipt  is  in  the  words  and  figures  following,  to  wit:  (Set 
out  copy  of  receipt). 

And  the  said  plaintiff  further  avers  that,   on,   to   wit,   the 

day  of  ,  1 .... ,  the  said  note  being 

then  in  the  custody  of  and  owned  by  the  said  defendant,  the 

said  H,  by  his  agent,  J,  at  the  city  of ,  county  of 

,  and  state  of   ,  and  at  the  office  of 

the  said  company,  the  defendant  herein,  in  said  city,  did  offer 
to  pay  to  the  said  defendant  the  amount  then  due  on  the  said 
note,  and  the  interest  thereon,  and  did  then  and  there  offer 
to  bring  in  and  to  pay  to  the  defendant,  on  the  next  day,  the 

same  being  the    day  of   ,  19 .  . ,  the 

amount  in  money  then  to  become  due  on  the  said  policy  of  life 
insurance,  and  the  said  contract  of  accident  insurance,  and 
the  amount  due  on  the  said  note  with  interest  thereon;  but  the 
said  defendant  did  then  and  there  refuse  to  accept  any  money 
on  said  note,  and  did  then  and  there  wrongfully  refuse  to  accept 


460  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

at  any  time,  any  money  in  payment  of  the  said  note  and  interest 
thereon,  or  any  part  thereof,  and  did  tlien  and  there  vvroiigfiUly 
state  that  it  would  not  receive  any  money  in  payment  of  tiie 
premium,  or  any  part  thereof  to  become  due  on  the  said  policy 

on  the  said day  of  ,  1«J.  .,  and  did 

then  and  there  wrongfully  refuse  to  accept  any  money  in  pay- 
ment of  any  premium  that  might  become  due  by  the  terms  and 
conditions  of  the  said  policy  of  insurance,  during  the  lifetime 
of  the  said  H,  and  did  then  and  there  wrongfully  claim,  in 
response  to  the  said  offer  of  the  said  H,  that  the  said  policy 
was  in  all  respects  forfeited  and  that  the  said  II  owed  the  said 
defendant  nothing  by  reason  of  the  issuance  thereof,  or  of  the 
conditions  thereof,  and  that  the  defendant  would  not  accept 
any  money  in  payment  of  the  premium  on  the  same. 

And  the  plaintiff  further  avers  that,  on,  to  wit,  the 

day  of ,  19.  .,  and  during  the  customary  banking 

hours  of  the  said  day,  and  before  the  hour  of  twelve  o'clock 

noon,  of  the  said  day,  the  said  H,  at  the  city  of , 

county  of ,  and  state  of ,  and  at  the 

office  of  the  said  company,  the  defendant  herein,  by  his  agent, 
J,  said  H  having  then  and  there  a  sufficient  sum  in  lawful 

money  of  the  United  States,  to  wit,  the  sum  of  

($ )   dollars,  being  a  sufficient  sum  to  cover  the  amount 

due  on  the  said  note,  and  all  interest  thereon,  and  being  also  a 
sufficient  amount  to  cover  the  amount  due  on  that  day  upon 
the  said  policy  of  life  insurance  and  the  said  contract  of  acci- 
dent insurance,  and  all  interest  that  might  be  due  thereon, 
according  to  the  terais  and  conditions  of  the  said  policy,  and 

,  being  the  place  where  he  was  entitled  to  pay  the 

premiums  that  might  become  due  on  the  said  policy,  and  where 
he  was  entitled  to  pay  the  said  note,  and  where  he  was  entitled 
to  demand  and  receive  the  premium  receipt  of  the  said  defend- 
ant, upon  such  payment  to  the  defendant,  did  then  and  there, 
on  behalf  of  the  said  H,  offer  to  pay  to  the  said  defendant  the 
said  premium  and  the  whole  thereof,  falling  due  on  the  said 

day   of    ,    19 . . ,    according  to   the 

terms  and  conditions  of  the  said  policy,  and  did  then  and  there 
demand  of  the  said  defendant,  that  upon  such  payment  it  should 
deliver  its  properly  executed  premium  receipt  as  provided  for 
in  said  policy,  and  did  then  and  their  offer  to  pay  the  said  note 
and  interest  thereon  and  the  whole  thereof,  and  did  demand 
that  the  said  defendant  surrender  up  to  him  the  said  note,  but 
the  said  defendant  did  then  and  there  wrongfully  refuse  to 
accept  any  money  whatsoever,  and  did  then  and  there  refuse 
to  turn  over  and  deliver  to  the  said  J,  the  said  note,  and  did 
then  and  there  refuse  to  deliver  to  the  said  J  its  premium  receipt 
upon  the  payment  of  the  said  premium  that  were  due  upon  the 
said  policy  on  said  last  mentioned  day,  according  to  the  terms 
and  conditions  thereof,  and  in  response  to  the  said  offer  by  the 
said  J  as  aforesaid,  did  then  and  there  wrongfully  state  and 


ASSUMPSIT  461 

claim  to  the  said  J  that  said  policy  was  forfeited  and  void,  and 
that  said  H  owed  the  said  defendant  nothing  by  reason  of  the 
issuance  thereof,  and  by  the  terms  and  conditions  of  the  said 
policy  of  insurance,  and  did  then  and  there  wrongfully  state 
to  the  said  J,  in  response  to  his  said  offer  to  pay  the  said  prem- 
ium, that  defendant  would  not  accept  any  money  as  premium 
upon  said  policy,  and  would  not  deliver  said  premium  receipt, 
and  would  not  accept  any  payment  of  the  said  note,  and  would 
not  accept  any  further  instalments  of  premium  that  might 
become  due  by  the  terms  and  conditions  of  the  said  policy  of 
insurance,  during  the  lifetime  of  the  said  H, 

And  the  plaintiff  further  avers  that  the  said  H,  by  his  said 
agent,  the  said  J,  then  and  there  had  the  said  sum  of  money, 
and  then  and  there  offered  to  pay  to  the  said  defendant  the 
said  premium,  and  the  amount  of  the  said  note  and  interest 
thereon  as  aforesaid,  and  for  the  purposes  aforesaid,  and  would 
then  and  there  have  paid  the  same,  and  would  have  accepted 
the  premium  receipt,  which  the  said  H  would  be  entitled  to, 
upon  the  payment  of  the  said  premium,  had  not  the  defendant 
then  and  there  wrongfully  refused  to  accept  such  payment, 
and  wrongfully  asserted  that  the  said  policy  was  forfeited  and 
void,  and  then  and  there  wrongfully  refused  to  deliver  said 
premium  receipt. 

Plaintiff  further  avers  that  the  said  H,  after  the  said  offer 

on  the  said   day  of   ,  19 . . ,  by  the 

said  J,  to  so  pay  said  note  as  aforesaid,  was  ever  ready,  willing 
and  able  during  his  lifetime  to  pay  the  said  note,  and  was  ever 
ready,  willing  and  able  to  pay  the  said  premium  so  falling  due 

on  the  said   day  of   ,  19 . . ,  and  was 

ever  ready  and  willing  to  accept  the  said  premium  receipt  he 
was  entitled  to  upon  such  payment  if  the  defendant  would 
have  accepted  the  same,  and  was  ever  ready,  willing  and  able 
to  pay  every  other  instalment  of  premium  which  became  due 
on  the  said  policy  of  insurance  during  his  lifetime,  and  to  accept 
the  properly  executed  premium  receipt  therefor,  if  the  defend- 
ant would  have  accepted  the  same  when  it  became  due  or  at 
any  time  thereafter,  and  since  the  maturity  of  the  said  policy 
by  reason  of  the  death  of  the  said  H,  said  plaintiff  has  ever 
been  ready  and  willing  to  allow  the  amount  of  the  said  instal- 
ment of  premium  falling  due  on  the  said day  of 

,  19 .  . ,  and  all  interest  that  may  be  found  to  be 

due  thereon,  together  with  all  other  instalments  of  premium 
falling  due  on  the  said  policy  of  life  insurance,  according  to  its 
terms,  during  the  life  of  the  said  H,  and  all  interest  that  may 
be  found  to  be  due  on  each  and  every  of  such  instalments  in 
abatement  and  in  reduction  of  the  sum  now  due  to  her  upon  the 
maturity  of  the  said  policy  of  life  insurance  by  the  terms  and 
conditions  thereof,  and  she  hereby  authorizes  and  consents  that 
all  such  sums  be  allowed  in  abatement  of  and  in  reduction  of 
the  sum  due  to  her  as  aforesaid,  and  that  such  allowance,  abate- 


462  ANNOTATED  FORMS  OF  PLEADING  AND  PRACTICE 

ment  and  reduction  be  embraced  in  any  verdict  or  any  judg- 
ment found  or  rendered  in  lier  favor  in  this  action. 

And  the  plaintiff  further  avers  that  afterwards,  to  wit,  on 

the day  of ,  19 .  . ,  the  said  H  died ; 

that  afterwards,  to  wit,  on  the day  of , 

19. .,  due  notice  and  direct  evidence  of  the  death  of  the  insured, 
during  the  continuance  of  this  policy,  was  given  to  the  defend- 
ant company;  that  during  his  life  the  said  H  was  prevented 
and  absolved  by  the  defendant  from  the  payment  of  the  prem- 
ium falling  due  on  the  said  policy  of  life  insurance,  by  its  terms, 
on  the  day  of ,  19 . . ,  and  was  pre- 
vented and  absolved  by  said  defendant  from  the  payment  of 
the  several  premiums  thereafter  falling  due  upon  the  said  policy 
of  insurance,  at  the  time  and  in  the  manner  as  provided  in  said 
policy;  and  that  although  the  ninety  days  after  due  notice 
and  direct  evidence  of  the  death  of  the  said  insured  during  the 
continuance  of  said  policy  have  been  given  to  the  said  defend- 
ant, according  to  the  terms  of  the  said  policy,  have  long  since 
elapsed,  of  all  wliich  said  defendant  afterwards,  on,  to  wit,  the 
day  and  year  last  aforesaid,  had  notice,  and  said  defendant  was 
then  requested  by   the  plaintiff  to  pay  her  the  said  sum  of 

($ )   dollars  so  by  it  insured,  as  aforesaid ; 

yet,  said  defendant,  disregarding  its  said  promise,  has  not  paid 

the  said  sum  of ($ )  dollars,  or  any  part 

thereof,  but  has  wholly  neglected  and  refused  so  to  do,  to  plain- 
tiff's damage  of dollars. 

1042  Ordinary;  premium,  pajnnent 

The  premium  of  a  policy  may  be  paid  by  note  by  agree- 
ment of  the  parties,  and  when  a  note  is  taken  under  circum- 
stances which,  constitute  an  absolute  payment  of  the  premium, 
the  default  in  the  payment  of  the  note  does  not  invalidate  the 
insurance.*^ 


1043  Ordinary;  delivery  of  policy,  liability 

An  insurance  polic}^  is  in  force  at  the  time  of  the  approval  of 
the  application,  the  payment  of  the  premium,  the  signing  of  the 
policy,  and  its  issuance  at  the  office  of  the  company,  regardless 
of  the  actual  delivery  of  the  policy  to  the  insured.^^  The  policy 
is  in  force  upon  its  unconditional  delivery,  notwithstanding  an 
express  provision  therein  that  the  company  shall  not  be  liable 
until  the  premium  is  actually  paid;  as  such  a  delivery  consti- 

88  Devine  v.  Federal  Life  Ins.  Co.,  89  Rose  v.  Mutual  Life  Ins.  Co., 

250  111.  203,  207,  208   (1911).  240  111.  45,  51,  52  (1909). 


ASSUMPSIT  463 

tutes  a  waiver  of  the  prepayment  of  the  premium.^o  An  in- 
surance policy  which  has  been  duly  signed  and  forwarded  to 
the  insurance  broker  to  whom  the  application  for  insurance 
was  made,  to  be  delivered  to  the  insured,  will  support  an  action 
thereon,  unless  actual  delivery  of  the  policy  to  the  insured  is 
expressly  required  by  contract.^i  The  insurer  is  liable  for 
damages  and  costs  incurred  by  the  insured  after  the  insurer 
has  wrongfully  refused  to  recognize  his  liability  on  the  policy, 
although  the  damages  and  costs  together  with  a  judgment  upon 
the  policy  exceed  its  face.^^ 

1044  Ordinary,  general,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the    

day  of ,  19 . . ,  said  defendant  caused  to  be  made, 

executed  and  delivered  to  M,  hereinafter  called  the  insured,  a 
certain  policy  of  insurance,  in  writing,  upon  the  life  of  the 
said  insured,  wherein  and  whereby  said  defendant,  in  considera- 
tion of  the  payment  of dollars,  to  be  paid  on  the 

delivery  of  the  said  policy,  or  before  it  should  take  effect,  and 
of  the  promise  of  the  said  insured  to  further  pay  an  equal  sum 

on  the day  of ,  19 .  . ,  undertook  and 

promised  to  and  did  insure  the  life  of  the  said  M,  the  said  insured, 
for  the  term  commencing  simultaneously  with  the  actual  deliv- 
ery of  said  policy  to  the  said  insured  and  the  payment  of  said 

premium,  and  ending  with  the day  of , 

one  year  from  the  date  of  said  policy,  to  wit,  on , 

19.  .,  and  by  such  insurance  said  defendant  promised  upon  the 
death  of  the  said  insured  during  the  aforementioned  term  of 
insurance,  and  upon  the  surrender  of  the  said  policy  and  the 
receipt  and  approval  of  proofs  of  death  of  the  said  insured 
during  the  continuance  of  the  said  contract  of  insurance,  to 

pay  to  the  said  plaintiff  the  sum  of at  the  home  office 

of  the  said  defendant  in  the  city  of  ,   

The  plaintiff  says  also  that  it  was  further  provided  in  said 
policy  that  said  policy  should  not  take  effect  until  the  first  prem- 
ium of    had  been  paid  and  the  policy  actually 

delivered  during  the  life  and  good  health  of  the  said  insured, 
and  that  the  said  policy  contained,  and  to  the  same  annexed 
were  and  are  sundry  other  provisos,  conditions  and  stipulations 
as  by  the  original  policy  aforesaid  (a  copy  whereof  is  filed  here- 
with) will  more  fully  appear.  The  plaintiff  further  says  that 
after  the  said  policy  was  made  and  executed  as  aforesaid,  and 
during  the  life  and  good  health  of  the  said  insured,  said  policy 
was  actually  delivered  to  the  said  insured  by  the  said  defendant 

90  People  V.  Commercial  Ids.  Co.,  ^2  Sandoval  Zinc  Co.  v.  New  Am- 
247  111.  92,  103   (1910).  sterdam  Casualty  Co.,  235  111.  306, 

91  DeTine  v.  Federal  Life  Ins.  Co.,  313    (1908). 
250  111.  203,  206    (1911). 


464  ANNOTATED  FORMS  OF   PLEADING  AND   PRACTICE 

and  the  first  premium,  amounting  to dollars,  was 

duly  paid,  and  the  promise  of  the  said  insured  to  further  pay 

an  equal  sum  on  the   day  of   ,  19 . . , 

was  duly  made;   and  that  thereafter  during  the  continuance 

of  the  said  policy,  to  wut,  on  the day  of , 

19..,  the  said  M  departed  this  life,  whereof  afterwards,  on,  to 
wit  the day  of ,  19 .  . ,  due  and  suffi- 
cient proof  was  made  to  said  defendant  in  conformity  with  the 
terms  and  conditions  of  said  policy;  and  that  this  plaintiff  was 
at  all  times  before  the  bringing  of  this  suit,  and  ever  since  has 
been,  ready  and  willing  to  deliver  up  said  insurance  policy  to 
the  said  defendant  company,  but  that  no  surrender  or  offer  to 
surrender  up  said  policy  to  the  said  defendant  company  was 
ever  formally  made  before  the  bringing  of  said  suit  for  the 
reason  that  the  said  defendant  had  then  wholly  refused  and 
has  always  since  refused  to  pay  the  said  amount  so  promised 
to  be  paid  as  aforesaid  under  any  circumstances.  And  the  plain- 
tiff further  says  that  the  said  insured  in  his  life  time  did  per- 
form, fulfill,  observe  and  comply  with,  and  that  the  said  plain- 
tiff at  all  times  has  performed,  fulfilled,  observed  and  complied 
with  each  and  all  the  conditions  and  stipulations  in  said  policy 
contained  or  to  the  same  annexed  on  the  part  and  behalf  of 
the  said  insured  in  his  life  time,  or  of  the  said  plaintiff'  at  any 
time  to  be  fulfilled,  performed,  observed  or  complied  wdth;  and 
that  the  said  insured  in  his  lifetime  did  not,  nor  has  the  said 
plaintiff  at  any  time  violated  any  of  the  provisions  in  the  said 
policy  contained  or  to  the  same  annexed  according  to  the  terms 
and  effect,  true  intent  and  meaning  of  said  policy. 

Yet  the  plaintiff  says  that  though  a  long  time,  to  wit,  the 

space  of months,  has  elapsed  since  due  and  sufficient 

proof  was  made  as  aforesaid  to  the  said  defendant  of  the  death 
of  the  said  M,  said  insured,  and  since  the  performance  by  the 
said  plaintiff  of  all  the  conditions  hereinabove  mentioned  to  be 
performed  before  the  fulfillment  of  the  said  promise  of  the 
said  defendant  as  aforesaid,  said  defendant  has  not  yet  paid 

to  the  said  plaintiff  said  sum  of dollars,  but  the 

same  and  every  part  thereof  is  wholly  due,  unpaid  and  unsatis- 
fied to  her,  contrary  to  the  force  and  effect  of  said  policy ;  and 
so  the  said  plaintiff  says  that  the  said  defendant  has  not  kept 
with  the  said  plaintiff  the  agreement  aforesaid  contained  in 
the  said  policy  executed  as  aforesaid  by  the  said  defendant,  but 
that  the  said  defendant  has  broken  the  same  and  to  keep  the 
same  with  the  said  plaintiff  has  hitherto  wholly  refused  and 
doth  refuse;  to  the  damage,  etc. 

1045  Ordinary;  non-constable  policy,  Narr.  (111.) 

I 

1.  For  that  whereas,  on,  to  wit,  the day  of , 

19..,  said  defendant  made  a  certain  insurance  policy  in  writ- 


ASSUMPSIT  465 

ing  and  delivered  the  same  to ,  by  which,  in  con- 
sideration of  certain  stipulations  and  agreements  in  a  certain 
application  by  him  theretofore  made  a  part  of  said  policy,  and 

in  consideration  also  of  the  payment  of   dollars 

and  therein  expressed  as  being  the  premium  thereon  for  the 
first  year  thereof,  promised  to  pay  the  plaintiff  by  the  name, 

style  and  description  of ,  the  wife  of  said , 

in  his  lifetime,  or  to  her  legal  representatives  and  assigns,  the 

sum  of  dollars  less  any  indebtedness  on  account 

of  said  policy,  within    days  after  acceptance  at 

the  office  of  said  defendant  in  the  city  of ,  of  sat- 
isfactory proofs  of  the  death  of  said of , 

county,  Illinois,  provided  such  death  should  occur 

on  or  before  the day  of ,  19 . . . 

2.  And  the  said  defendant  in  said  contract  of  insurance  fur- 
ther agreed  to  renew  and  extend  said  insurance  upon  the  afore- 
said conditions  without  medical  re-examinations  during  each 
successive  year  of  the  life  of  the  insured  from  the  date  thereof, 

upon  the  payment  on  or  before  the day  of , 

in  each  year,  of  the  renewal  premiums  in  accordance  with  a 
certain  schedule  of  rates,  less  the  dividends  thereon,  in  said 
policy  set  out ;  and  said  defendant  in  and  by  said  policy,  in  con- 
sideration of  the  premises,  further  agreed  that  said  annual 
premiums  might  be  paid  by  quarterly  instalments  on  or  before 
the day  of ,  in  each  year. 

3.  And  said  defendant  for  the  same  consideration  further 
agreed  to  limit  its  expense  charge,  that  is  to  say,  its  charge  for 

conducting  its  business  of  insurance   to    dollars 

per  annum,  on  each  thousand  dollars  insured  and  to  divide  the 
residue  of  each  renewal  premium  in  said  policy  mentioned  as 
follows:  Such  amount  as  should  be  required  for  said  policy's 
share  of  death  losses  to  the  appropriation  of  a  death  fund  to 
be  used  solely  in  the  settlement  of  death  claims,  and  the 
remainder  to  be  used  as  a  guaranty  fund  towards  offsetting  any 
increase  in  premiums  on  said  policy  from  year  to  year,  and 
for  the  purpose  of  keeping  the  premiums  equal  or  level  with 

that  for  the  year  19 . . ,  at  which  time  the  said was 

years  of  age,  and  the  quarterly  premiums  for  that 

age  were  dollars  as  set  forth  in  the  schedule  of 

(juarterly  renewable  rates  for  the  sum  of dollars 

insurance. 

4.  And  the  plaintiff  avers  that  said caused  to 

be  paid  to  said  defendant  from  the  said  day  of 

,  19 . . ,  up  to  the day  of , 

19 . . ,  the  sum  of  dollars  for  each  quarter  of  a 

year  for  the  renewal  and  extension  of  said  premiums;  and  on 

the day  of when  the  said , 

caused  to  be  paid  the  quarterly  premium  for  such  renewal,  the 
said  defendant  fraudulently  and  in  violation  of  its  contract 
required  the  sum  of dollars  as  and  for  a  quarterly 


466  ANNOTATED   FORMS  OF  PLEADING  AND  PRACTICE 

renewal  premium  to  renew  and  extend  said  policy  of 

dollars,  which  sum  the  said paid  to  the  defendant 

and  continued  to  pay  on  or  before  the  reciuired  day  of  each 

quarter  until  the  day  of ,  19 . . ,  for  the  extension 

and  renewal  of  said  policy  of  insurance. 

5.  And  the  plaintiff  further  avers  that,  on  to  wit,  the 

day  of    ,    19..,   she   appeared  on   behalf  of  said 

at   the   office   of   the   defendant   in  the   city   of 

,  and  tendered  and  offered  to  its  authorized  agent 

the  exact  sum  of dollars  in  specie  of  the  United 

States  as  and  for  the  renewal  and  extension  of  said  policy  from 

,    19 .  . ,   to    ,    19 .  .  ;   whereupon   said 

agent  stated  to  the  plaintiff  that  he,  in  behalf  of  the  defendant, 

would  nut  accept  said  sum  of dolhirs  for  the  reason 

that  said  defendant  had  raised  the  renewal  rates  and  that  the 

sum  of dollars  would  be  required  to  renew  and 

extend  said  policy  to  ,  19. .,  and  that  there  was 

no  guaranty  fund  with  which  to  offset  the  increase  in  the 
premium  or  to  keep  the  same  level  with  the  rate  of  premiums 
at  which  said had  paid  since ,  19 .  . . 

6.  And  the  plaintiff  avers  that  the  statements  aforesaid  of 
said  agent  were  false  and  fraudulent  and  were  wrongfully  made 
for  the  purpose  of  compelling  the  said to  discon- 
tinue the  renewal  of  said  policy,  and  that  on  the  day  aforesaid, 
he  had  funds  to  his  credit  in  the  hands  of  said  defendant  and 
to  the  credit  of  the  said  policy,  as  part  of  the  guaranty  fund 
aforesaid,  sufficient  to  keep  said  renewal  premiums  to  the  level 

of dollars  aforesaid  on  said  date  and  up  to  and 

beyond  the  date  of  the  death  of ,  and  that  such  increase 

in  the  rate  w^as  a  fraud  upon  said and  the  plaintiff, 

and  that  such  tender  aforesaid  was  sufficient  to  bind  said  de- 
fendant and  then  and  there  constituted  a  payment  for  the  re- 
newal and  extension  of  said  policy  during  the  whole  period 

within  which  said  sum  of dollars  together  w4th 

such  guaranty  fund  would  have  constituted  a  renewal  payment 
for  such  policy,  to  wit,  until ,  19 .  .  . 

(Consider  paragraphs  9,  10  and  11  of  count  IV  as  here 
repeated  the  same  as  if  set  out  in  words  and  figures.) 

II 

(Consider  paragraphs  1  and  2  of  count  I  as  here  repeated 
the  same  as  if  set  out  in  words  and  figures.) 

3.  And  the  plaintiff  further  avers  that  one  of  the  paragraphs 

on  the page  of  said  policy  is  headed  in  large  black  type, 

as  follows:  "Regarding  the  death  and  guaranty  fund,"  and 
that  said  paragraph  is  in  the  following  words  and  figures,  viz. : 
(Set  forth  paragraph). 

4.  And  the  plaintiff  avers  that  the  said paid  to 

the  said  defendant  all  renewal  premiums  demanded  by  it,  and 
that  it  did  not  as  it  agreed,  keep  said  premiums  level,  but  on 


ASSUMPSIT  467 

the  contrary,  on   ..,  19..,  increased  said  renewal 

premiums  from  $ per  one  thousand  dollars  of  insurance 

for  one  quarter  to  $ dollars  per  one  thousand  dollars  of 

insurance  for  one  quarter,  which  the  said   paid 

and  continued  to  pay  at  said  rate  of  $ per  one  thousand 

dollars  until    ,  19  •  • ,  when  said  defendant  again 

increased  the  premium  rate  to  $ per  one  thousand  dollars 

of  insurance. 

5.  And  the  plaintiff  further  avers  that,  on,  to  wit, . 

19. .,  she  appeared  at  the  office  of  the  said  defendant  and  offered 
and  tendered  to   an  authorized  agent  of  said   defendant,   the 

sn7n  of   dollars,  in  specie  of  the  United  States, 

being  the  quarterly  premium  of   dollars  for  the 

then  next  ensuing  quarter,  at  which  rate  the  said 

had  renewed  said  policy  from  the day  of , 

19..,  till  that  date,   to  wit,    ,   19..;  whereupon, 

said  agent  refused  to  accept  said  sum  of dollars 

and  stated  to  the  plaintiff  that  the  rate  had  been  increased  and 

that  it  would  require  the  sum  of dollars  to  renew 

said  policy  for  the  then  next  ensuing  quarter.  And  the  plain- 
tiff' avers'  that  she  then  demanded  of  the  said  agent,  for  and 

on  behalf  of  said    that  the  amount  retained  of 

premiums  paid  by  said under  the  guaranty  fund 

clause  of  said  policv,  be  applied  to  extend  said  policy,  or  that 

said  defendant  issue  to  said   paid  up  insurance 

purchased  with  the  amount  so  retained ;  which  the  said  defend- 
ant then  refused  and  ever  since  has  refused  to  do. 

6.  And  the  plaintiff  avers  that  the  said had  then 

paid  to  the  defendant  for  more  than full  years 

premiums,  and  had  then  paid  full  years'  prem- 
iums ;  and  that  said  defendant  after  deducting    

dollars  per  annum  for    dollars  of  insurance  for 

its  expense  charge,  and  after  deducting  from  the  premiums  so 
paid  said  policy's  share  of  death  losses  that  there  remained  a 
sufficient  sum  in  its  hands  to  have  extended  said  insurance  to 

,   19 .  . ,   and  beyond  that   date,  by  using    % 

of  the  amount  retained  in  its  hands  after  deducting  said  expense 
charge,  death  losses,  and  money  used  to  offset  increase  in  prem- 
iums so  far  as  said  defendant  did  offset  such  increase. 

7.  And    the    plaintiff    further   avers   that    said    increase    to 

dollars  per  quarter  made,  on,  to  wit, , 

19 . . ,  by  the  defendant  was  fraudulent  and  done  for  the  pur- 
pose'of  compelling  said  to  discontinue  the  pay- 
ment of  renewal  premiums  and  that  the  said  defendant  had  in 
its  hands  a  sufficient  sum  under  the  said  guaranty  clause  of 

said  policy,  to  extend  the  same  to ,  19 .  . ,  and  that 

said  policy  under  said  clause  and  because  the  said  defendant 
had  sufficient  money  of  said  guaranty  fund  as  aforesaid  to 
extend  said  policy  to  said ,  19. .,  was  in  full  force 


468  ANNOTATED  FORMS  OF  PLEADING  AND  PRACTICE 

and  effect  on  the  date  of  the  death  of  said to  wit, 

on ,19... 

(Consider  paragraphs  9,   10  and  11  of  count   IV  as  here 
repeated  the  same  as  if  set  out  in  words  and  figures.) 

Ill 

(For  a  third  count  consider  paragraphs  1  and  2  of  count  I 
as  here  repeated  the  same  as  if  set  out  in  words  and  figures.) 

3.  And  the  plaintiff  avers  that  beginning  with , 

19..,  aforesaid,  the  said    paid  or  caused  to  be 

paid  to  said  defendant  up  to ,  19.  .,  all  the  prem- 
iums reijuired  or  demanded  of  him  by  said  defendant,  to  be 
paid  to  renew  and  extend  said  policy ;  that  he  paid  such  prem- 
iums by  quarterly  instalments  on  or  before  the   

day  of of  each  year  from ,  19 .  . ,  to 

,  19 . . ,  that  is  to  say,  for full  years. 

4.  And  the  plaintiff'  further  avers  that  under  and  by  virtue 

of  the  statutory  laws  of  the  state  of   ,  in  which 

state  said  defendant  was  incorporated,  it  is  provided  that  when- 
ever any  policy  of  life  insurance  issued  after 19. ., 

by  any  domestic  life  insurance  corporation,  after  being  in  force 

years,  shall  by  its  terms  lapse  or  become  forfeited 

for  the  non-payment  of  premiums  or  any  note  given  for  a  prem- 
ium or  loan  made  in  cash  on  such  policy  as  security,  or  of  any 
interest  on  such  note  or  loan,  the  reserve  of  such  policy  com- 
puted according  to  the  American  experience  tables  of  mortality 

at  the  rate  of per  annum  shall  on  demand  made 

with  surrender  value  of  the  policy  within months 

after  such  lapse  or  forfeiture,  be  taken  as  a  single  premium  of 
life  insurance  at  the  published  rates  of  the  said  corporation 
at  the  time  the  policy  was  issued,  and  shall  be  applied  as  shall 
have  been  agreed  in  the  application  or  policy  either  to  con- 
tinue the  insurance  of  the  policy  in  force  at  its  full  amount  so 
long  as  such  single  premium  will  purchase  temporary  insurance 
for  the  amount  at  the  age  of  the  insured  at  the  time  of  the 
lapse  or  forfeiture,  or  to  purchase  paid  insurance ;  or  if  there 
be  no  such  agreement  in  the  policy,  such  single  premium  may 
be  applied  in  either  of  the  specified  modes  aforesaid,  at  the 
option  of  the  owner  of  the  policy,  notice  of  such  option  to  be 
contained  in  the  said  demand. 

5.  And  the  plaintiff  avers  that  the  said  policy  was  issued 

after ,  19 . . ,  and  on ,  19 . .  ;  that  said 

defendant  is  a  domestic  corporation  of  the  state  of ; 

that  said  policy  was  in  force  for  more  than years 

and  was  in  force full  years ;  and  that  the  said 

complied  with  all  the  conditions,  stipulations  and  provisions 
thereof;  and  paid  to  said  defendant  all  premiums  required  and 
demanded  by  it  upon  said  policy  for  the  renewal  of  the  same; 

that  on,  to  wit, >  19  •  •  ?  the  plaintiff  then  and  there, 

acting  for  said tendered  and  offered  to  an  author- 


ASSUMPSIT  469 

ized  agent  of  the  defendant  the  sum  of  dollars 

as  and   for  the   renewal  premium,  upon  said  policy   for   the 

period  beginning    ,   19 . . ,   and   ending 

,  19 . . ,  which  was  the  amount  the  said 

had  paid  during  each  quarter  from , 

19 . . ,  for  the  renewal  and  extension  of  said  policy ;  which  the 
said  agent  then  and  there  refused  to  receive  upon  the  ground 
that  the  renewal  rate  on  said  policy  had  been  increased.    And 

thereupon,  then  and  there  and  at  other  times  within 

months  of  the  said ,  19 . . ,  the  said  

demanded  of  the  defendant  that  the  reserve  on  such  policy  com- 
puted according  to  the  American  experience  tables  of  mortality 

at  the  rate  of per  annum  with  the  surrender  value  of 

said  policy  to  be  taken  as  a  single  premium  of  life  insurance 
at  the  published  rates  of  the  said  corporation  at  the  time  the 
said  policy  was  issued  either  to  continue  and  extend  the  said 
insurance  in  force  for  the  full  amount  so  long  as  said  single 
premium  would  purchase  temporary  insurance  at  the  age  of 
the  insured  at  the  date  of  the  said  lapse  of  said  policy  on 

,  19 . . ,  to  wit,  at  the  age  of   years,  or 

to  purchase  paid  insurance;  which  the  said  defendant,  then 
refused  and  at  all  times,  and  ever  since  has  refused  to  do. 

6.  And  the  plaintiff  avers  that  the  reserve  on  said  policy  com- 
puted according  to  the  American  experience  tables  of  mortality, 

at  the  rate  of  ....  %  per  annum  on,  to  wit, ,  19. ., 

amounted  to,  to  wit,  dollars,  and  that  the  sur- 
render value  of  said  policy  on  said  date  was,  to  wit, 

dollars,  which  sums,  or  either  of  them,  were  sufficient  to  extend 
and  renew  said  policy  until,  to  wit,  ,  19. . . 

7.  And  the  plaintiff  further  avers  that  in  all  of  the 

years  during  which  the  said paid  to  the  defend- 
ant the  premiums  demanded,  the  actual  losses  of  said  defend- 
ant were  greatly  less  than  the  expected  and  anticipated  losses 
as  computed  by  the  actuaries  upon  the  American  experience 
tables  of  mortality ;  that  in  consequence  thereof,  the  said  defend- 
ant saved  large  sums  of  money  in  its  business  of  insurance 
between  the  expected  and  realized  losses  which  the  said  defend- 
ant under  said  policy  of  insurance  and  the  laws  of  the  state 

of ,  w^as  and  is  bound  to  a  credit  on  the  said  policy 

for  the  purpose  therein  expressed  and  embodied  in  the  said 
statutory  law  of  the  state  of 

8.  And  the  plaintiff  avers  that  under  and  by  virtue  of  the 

laws  of  the  state   of    ,   the   said   defendant   was 

bound  to  extend  and  renew  said  insurance;  that  by  virtue  of 
said  laws  said  policy  could  not  become  lapsed  for  failure  to  pay 
any  renewal  premium,  so  long  as  the  said  policy  had  been  in 

force full  years,  and  so  long  as  there  was  the  reserve 

thereupon  as  aforesaid,  computed  as  aforesaid  to  be  taken  as 
a  single  premium  for  the  continuance  of  such  insurance  as 
provided  by  the  said  law^s. 


470  ANNOTATED   FORMS  OP  PLEADING  AND   PRACTICE 

(Consider  paragraphs  9,  10  and  11  of  count  IV  as  here 
repeated  the  same  as  if  set  out  in  words  and  figures.) 

IV 

(For  a  fourth  count,  consider  paragraphs  1  and  2  of  count 
I  to  star  as  here  repeated  the  same  as  if  here  set  out  in  words 
and  figures.) 

3.  And  the  plaintiff  avers  that  said  policy  of  insurance  was 

not  a  policy  of  term  insurance  for years  or  less,  but 

was  a  continuing  insurance  on  the  life  of  said   , 

upon  the  payment  of  the  lawful  premiums  as  expressed  in  said 
schedule  in  said  policy  contained  and  the  contemporary  stipula- 
tions and  agreements  also  in  said  policy  contained. 

4.  And  the  plaintiff  further  avers  that  by  the  terms  of  said 
policy  the  premiums  due  and  payable  to  keep  said  policy  in 
force  were  variable  and  that  such  premiums  in  amount  were 
subject  to  change  by  the  provisions  of  said  policy  aforesaid ; 
that  the  rates  in  said  schedule  contained  were  subject  to 
diminution  by  the  dividends  thereon  and  also  bj'  the  provisions 
in  said  policy  contained ;  that  the  guaranty  fund  of  said  policy 
accumulated  less  the  payment  of  the  policy 's  share  of  death 

losses  and  the  expense  charge  limited  to   dollars 

per  thousand  per  annum  was  to  be  used  by  saifd  defendant  to 
keep  the  premiums  due  and  payable  on  said  policy  level  with 
the  premium  due  and  payable  upon  the  issuance  of  said  policy 
of  insurance. 

5.  And  the  plaintiff  further  avers  that  by  virtue  of  the 
statutory  laws  of  the  state  of ,  in  which  said  defend- 
ant did  and  still  does  business,  it  is  provided  that  no  life  insur- 
ance corporation  doing  business  in  said  state  of   

shall  declare  forfeited  or  lapsed  any  policy  hereafter  issued  or 
renewed  and  not  issued  on  payment  of  monthly  or  weekly  pre- 
miums, or  unless  the  same  is  a  term  insurance  contract,  for  one 
year  or  less,  nor  shall  any  such  policy  be  forfeited  or  lapsed 
by  reason  of  non-payment  when  due  of  any  premium,  interest 
or  instalment  or  any  portion  thereof  required  by  the  terms  of 
the  policy  to  be  paid,  unless  written  or  printed  notice  stating 
the  amount  of  such  premium,  interest,  instalment  or  portion 
thereof  due  on  such  policy,  the  place  where  it  should  be  paid 
and  to  whom  the  same  is  payable,  shall  be  duly  addressed  and 
mailed  to  the  person  whose  life  is  insured,  or  to  the  assignee 
of  the  policy  if  notice  of  the  assignment  has  been  given  to  the 
corporation,  taking  his  or  her  last  known  postoffice  address, 
postage  paid  by  the  corporation  or  by  an  officer  thereof  or  per- 
son appointed  by  it  to  collect  such  premium,  at  least  fifteen 
and  not  more  than  forty-five  days  prior  to  the  date  when  the 
same  is  payable.  And  said  statutory  law  further  provides  that 
said  notice  shall  also  recite  that  unless  such  premium,  interest, 
instalment  or  portion  thereof  then  due,  shall  be  paid  to  the 
corporation  or  to  a  duly  appointed  agent  or  person  authorized 


ASSUMPSIT  471 

to  collect  such  premium,  by  or  before  the  date  it  falls  due,  the 
policy  and  all  premiums  thereon  will  become  forfeited  and  void, 
except  as  to  the  right  to  a  certain  valued  or  paid  up  policy, 
as  in  the  chapter  in  which  said  section  of  said  statutory  law 
occurs  is  provided. 

6.  And  the  plaintiff  further  avers  that  the  said 

caused  to  be  paid  to  the  defendant  all  the  premiums  demanded 

by  said  defendant  under  said  policy  from  the    

day  of    ,   19 .  . ,  up  to  the    day  of 

,  19  •  • ,  quarterly  in  advance  on  or  before  the 

day  of of  each  year ;  that  owing  to  the  terms  of  said 

insurance  policy,  said  assured  could  not  and  did  not  know  the 
amount  of  quarterly  premium  that  could  be  and  would  be 
demanded  by  said  defendant  to  keep  said  policy  in  full  force 
and  effect;  that  by  the  terms  of  said  policy  the  assured  was 
required  to  pay  by  way  of  renev»'al  premiums  according  to  cer- 
tain schedule  rates  in  said  policy  of  insuranpe  included,  less 
the  dividends  awarded  thereon;  and  it  was  further  provided 
that  the  surplus  accruing  to  the  credit  of  said  policy  was  to 
be  applied  towards  keeping  the  premiums  level  with  the  pre- 
mium at  the  date  said  policy  was  issued;  and  that  by  reason 
thereof  the  renewal  premiums  on  said  policy  designed  to  be 
and  were  in  fact  variable  and  the  amount  thereof  could  not 
be  known  by  the  assured,  unless  the  assured  was  notified  by  said 
defendant  company;  of  which  said  defendant  company  at  all 
times  had  notice,  and  at  all  times  had  in  its  possession  the  com- 
plete data  from  which  it  could  compute  the  amount  of  renewal 
premiums. . 

7.  And  the  plaintiff  further  avers  that  she  was  the  wife  of 

the  said  during  his  lifetime,  and  that  she  acted 

for  the  said  assured  and  as  his  agent  in  paying  the  premiums 

due  and  demanded  on  said  policy ;  that,  on,  to  wit, , 

19 . . ,  she,  on  behalf  of  said  assured,   offered  to  pay  to  said 

defendant   the   sum  of    dollars,   as  and  for  the 

renewal  premium  and  extension  of  said  poliej^  from , 

19..,   which  was  the   amount   of   quarterly  premium   on  said 

policy  of  dollars,  which  she  had  paid  on  behalf 

of  said  assured  to  said  defendant  for  the  renewal  of  said  policy 

from,  to  wit, ,  19.  .  ;  and  that  said  authorized 

agent  at  said  time  and  place  refused  to  accept  said  sum  of 

dollars  as  the  renewal  premium,  and  demanded 

of  the  assured  through  the  plaintiff  for  the  renewal  and  exten- 
sion of  said  policy  from   ,  19 .  . ,  to   , 

19 .  . ,  the  sum  of dollars. 

8.  And  the  plaintiff  further  avers  that  said   assured  jiever 
at  any  time  had  any  notice  of  the  amount  of  premium  which 

would  be  demanded  by  or  be  due  to  said  defendant  on , 

19.  .,  prior  to  the  time  aforesaid,  when  plaintiff  on  behalf  of 

said  assured  offered  to  pay  the  sum  of dollars  to 

said  defendant  for  the  said  renewal  premium;  and  that  no 


472  ANNOTATED   FORMS  OF   PLEADING  AND   PRACTICE 

written  or  printed  notice  was  ever  given  to  the  assured,  or  to 
any  one  representing  him  as  required  by  the  said  statutory 
law,  stating  the  amount  of  premium  due,  the  place  where  it 
should  be  paid,  and  if  the  same  was  not  paid  at  a  given  place 
and  time,  the  said  policy  should  become  forfeited  and  void ; 
and  that  said  assured  never  knew  prior  to  the  date  when  the 

plaintiff  offered  the  said  sum  of   dollars  to  the 

defendant,  that  said  defendant  demanded  a  larger  or  different 
amount,   or  that   said  premium  would   be   increased   on   said 

,19... 

9.  And  the  plaintiff'  further  avers  that  the  said   , 

the  assured,  departed  this  life  on,  to  wit,  the  day 

of ,  19. .,  and  that  on,  to  wit,  the  same  day,  the 

plaintiff  offered  and  desired  to  make  to  said  defendant,  as  in 
and  by  said  policy  required,  proofs  of  the  death  of  the  said 

and  said   defendant  on,   to   wit,   the  same   day 

waived  said  proofs  of  death  and  refused  to  pay  the  said  sum 

of dollars  in  said  policy  mentioned,  on  the  ground 

that  said  policy  was  not  in  force  at  the  time  of  the  death  of 

the  said ,  but  that  said  policy  had  become  forfeited 

and  lapsed  and  void  on ,  19 .  . ,  for  the  failure  on 

the  part  of  said  assured  to  pay  the  renewal  premium  alleged 
by  said  defendant  to  be  due  on  said  date. 

10.  And  the  plaintiff  avers  that  the  said in  his 

lifetime  did  perform,  fulfill  and  comply  with  all  the  conditions, 
provisions  and  stipulations  in  said  policy  contained  or  thereto 
annexed  according  to  the  due  effect  and  meaning  of  the  same; 
and  as  by  said  policy  provided,  he  duly  renewed  the  same  from 

time  to  time,  and  offered  on,  to  wit,    ,  19 . . ,  to 

renew  the  same  according  to  the  terms  and  meaning  of  said 
policy,  and  kept  the  same  in  full  force  and  effect ;  and  that 
said  policy  was  in  full  force  and  effect  at  the  time  of  the  death 

of   the   said    ;    and   that   the   plaintiff  has   fully 

observed  the  terms  and  conditions  thereof. 

11.  Yet,  the  plaintiff  avers  that  although  more  than 

days  have  elapsed  since  the  said  refusal  to  allow  the  plaintiff 
to  make  proofs  of  death  as  she  was  then  and  there  willing  and 
able  to  make  the  same,  said  defendant  has  not  paid  the  plain- 
tiff the  said  sum  of dollars,  or  any  part  thereof, 

but  to  keep  and  perform  any  and  all  of  the  conditions  and 
undertakings  of  said  policy,  has  wholly  neglected  and  refused, 
to  the  damage,  etc. 

1046  Ordinary;  payment  of  premium  extended,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the   

•  day  of ,  19. .,  at  the  city  of to  wit, 

in  said  county  of  ,  said  defendant  made  its  cer- 
tain policy  of  insurance  of  that  date  numbered  

and  then  and  there  delivered  the  same  to   ,  late 


ASSUMPSIT  473 

of  the  said  city  of and  husband  of  the  plaintiff, 

in  and  by  which  said  policy  said  defendant,  in  consideration 
of  the  application  therefor  and  of  the  premiums  paid  and 
assumed  to  be  paid  to  said  defendant  upon  and  for  the  said 

policy  as  therein  mentioned  assured  the  life  of  the  said 

in  the  amount  of dollars  from dur- 
ing the  continuance  of  said  policy  and  contract,  and  did  further 

promise  and  agree  to  pay  said  sum  of dollars  at 

its  principal  office  in to  the  plaintiff  within 

days  after  satisfactory  proofs  (under  oath  on  the  company's 
blanks)  of  the  death  of  said  insured,  the  balance  of  the  year's 
premium,  if  any,  and  any  other  indebtedness  to  the  company 
being  first  deducted  therefrom;  the  said  policy  being  hereto 
attached  and  hereby  referred  to  and  made  a  part  hereof. 

And  the  plaintiff  avers  that  all  of  the  said  premiums  men- 
tioned in  said  policy  and  due  on and 

in  each  year  were  fully  paid  on  said  dates  except  the  semi- 
annual premium  due  on  and  which  said  pay- 
ment of  said  last  premium  was  duly  extended  by  said  defend- 
ant for   days  from  said  last  date,  and  the  payment  of 

which  said  last  premium  was  duly  tendered  to  said  defendant 

before  the  expiration  of  said  extension,  to  wit,  within 

days  from  said 

And  the  plaintiff  further  avers  that  the  said   

departed  this  life  on ,  in  the  city  of , 

said  county  of ,  and  while  said  policy  was  in  full 

force  and  effect ;  that  afterward,  to  wit  on   ,  the 

plaintiff,  being  the  widow  of  said  deceased,  furnished  to  the 

defendant  proofs  of  death  of  said  ,  which  proofs 

were  made  on  the  blanks  of  the  defendant  furnished  by  the  de- 
fendant to  the  plaintiff,  were  properly  filled  out  and  which  were 
accepted  by  the  defendant  in  full  compliance  with  the  require- 
ments of  said  defendant  and  within  the  time  directed  by  said 
defendant. 

By  means  whereof  the  said  defendant  became  liable  to  pay 
to  said  plaintiff  the  said  sum  of  dollars  accord- 
ing to  the  tenor  and  effect  of  said  insurance  policy;  and  being 
so  liable,  said  defendant,  in  consideration  thereof,  afterwards, 
to  wit,  on  the  date  and  at  the  place  aforesaid,  undertook  and 
then  and  there  promised  to  pay  the  said  plaintiff  said  sum  of 
money  in  said  policy  mentioned  according  to  the  tenor  and 
effect  thereof.     Nevertheless,  etc. 

1047  Sick  benefit,  Narr.  (Md.) 

For  that  the  defendant  is  a  corporation  duly  incorporated 

under  the  laws  of  the  state  of  ,  and  during  the 

times  hereinafter  mentioned  was  and  now  is  engaged  in  the 
business  of  accident  and  liability  insurance  in  the  city  of 
,  state  of  Maryland,  and  issues  policies  agree- 


474  ANNOTATED  FORMS  OF  PLEAD]NG  AND   PRACTICE 

ing  to  pay  certain  sums  of  money  in  the  event  that  the  p'arty 
named  in  said  policy  shall  become  injured  by  accident  and 
iiidemnitying-  him  against  disability  from  illness;  and  in  pur- 
suance of  and  in  accordance  with  the  business  of  said  defend- 
ant, and  for  a  good  and  valuable  considei-ation,  to  wit,  the  sum 

of (.$ )  dollars  paid  by  the  said 

to  said  defendant  on  or  about  the day  of , 

19 .  . ,  the  defendant  issued  to  the  said  a  certain 

policy   or   certificate   of   insurance    designated   as   No , 

wherein  and  whereby  said  defendant  promised  and  agreed  to 

pay   to  the  plaintiff,  the  said    ,   certain  sums  of 

money,  according  to  a  schedule  of  operations  attached  to  said 
policy,  and  a  further  sum  for  each  week  during  the  disability 
of  said   resulting  from  such  illness. 

And  the  said on  the day  of , 

19..,  was  operated  on  for  a  certain  disability  mentioned  in 
said  schedule,  to  wit,  mastoiditis,  and  was  tliereby  incapacitated 
and  disabled  from  performing  his  usual  business  duties  for  a 

period  of    weeks,  accounting  from  the    

day  of  ,  19 .  . .  And  the  said  fur- 
nished the  defendant  with  notice  of  said  illness  and  operation 
and  gave  proper  and  sufficient  proof  of  said  operation  and  ill- 
ness, in  accordance  with  the  requirements  of  said  policy  and 
contract ;  and  said  plaintiff  has  performed  all  the  conditions 
and  stipulations  of  said  policy  on  his  part  to  be  performed, 
but  said  defendant  has  refused  and  still  refuses  to  pay  to  said 

plaintiff  the  sum  of  ($ )   dollars,  due  and 

owing  to  said  plaintiff  under  said  policy. 

And  tile  plaintiff'  claims ($ )  dollars. 

1048  Suicide,  liability 

In  case  of  an  assured 's  suicide  while  sane  the  right  of  recov- 
ery on  an  ordinary  life  insurance  policy  depends  upon  the 
absence  of  a  provision  in  the  policy  against  liability  under  the 
circumstances  and  also  upon  the  character  of  the  beneficiary. 
If  the  policy  is  payable  to  the  estate  of  the  deceased,  no  recov- 
ery can  be  had  under  it ;  but  if  the  policy  is  payable  to  a  third 
person,  the  policy  is  enforcible.  So,  in  fraternal  insurance, 
the  intentional  self-destruction  of  the  assured  while  sane  does 
not  defeat  the  right  of  his  beneficiary,  if  it  be  his  wife,  to  a 
recovery,  where  the  contract  of  insurance  is  silent  on  the  rights 
of  the  parties  in  case  of  self-destruction.^  ^ 


93  Select    Knights    of   America   v.       Supreme  Conclave  v.  Miles,  92  Md. 
Beaty,  224  111.  346,  349,  351  (1906) ;       613   (1901). 


ASSUMPSIT  475 

1049  Manufactured   articles   for   dealer,   acceptance   refused, 
Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the    

day  of    ,   19..,  C  was  then  and  there  employed 

and  engaged  in  the  work  of  cutting,  designing  and  manufac- 
turing ladies'  cloaks  and  garments  for  M,  in  the  city  of 

and  county  aforesaid,  and  whereas  the  said  defendant  herein 
was  then  and  there  engaged  in  the  wholesale  dry  goods  business 
and  manufacturing,  buying  and  selling  ladies'  cloaks  and  gar- 
ments, and  being  so  engaged  in  said  business  on  the  day  and 
year  last  aforesaid,  and  being  desirous  of  having  the  serv- 
ices of  said  C  in  and  about  the  manufacture  of  such  cloaks  and 
garments  as  said  defendant  might  want,  the  said  defendant 
on  the  day  and  year  last  aforesaid  then  and  there  recjuested 
the  said  C  to  obtain  another  person  with  capital  and  means  for 
the  purpose  of  carrying  on  the  business  of  manufacturing  such 
cloaks  and  garments  as  aforesaid,  and  such  as  the  said  defend- 
ant would  order,  and  then  and  there  promised  the  said  C  that 
said  defendant  would  buy  and  receive  and  accept  from  such 
person  whom  he,  said  C,  woukl  associate  with  him  when  the 
same  would  be  so  manufactured  by  him,  such  cloaks  and  gar- 
ments to  be  ordered  by  him,  to  the  amount  of   

($ )   dollars,  and  pay  to  the  said  person  whom  the  said 

C  would  associate  with  him  in  the  said  enterprise,  a  sum  equal 
to per  cent  upon  the  cost  price  of  said  cloaks  and  gar- 
ments so  to  be  ordered  by  and  manufactured  for  said  defend- 
ant; that  the  said  C  then  selected  and  obtained  said  plaintiff 
herein  for  the  purpose  of  manufacturing  and  delivering  said 
cloaks  and  garments  as  aforesaid  to  the  said  defendant,  who 
then  and  there  was  satisfactory  to  and  accepted  by  said  defend- 
ant as  such  manufacturer;  and  plaintiff  says  that  said  C  before 
then,  had  never  been  engaged  in  the  manufacture  of  cloaks  and 
garments  nor  had  he  before  then  fitted  up  premises  or  pur- 
chased any  cloths  or  materials,  nor  engaged  help  in  the  manu- 
facture of  such  cloaks  and  garments,  nor  had  he  any  money  or 
means  for  the  same,  but  the  defendant  being  then  and  there 
desirous,  as  aforesaid,  to  have  said  plaintiff  engage  in  the 
manufacture  of  said  cloaks  and  garments,  and  to  have  said  C  em- 
ployed and  engaged  by  said  plaintiff',  as  the  cutter  and  designer 
of  such  cloaks  and  garments  to  be  manufactured  by  said  plain- 
tiff as  aforesaid,  he,  the  said  defendant,  then  and  there  induced 
said  plaintiff  to  engage  in  the  said  business  of  manufacturing 
the  said  cloaks  and  garments  as  aforesaid,  and  to  buy  goods, 
wares,  merchandise  and  machinery  and  apparatus  for  the  manu- 
facture of  the  same,  and  also  to  rent,  lease  and  fit  up  the  prem- 
ises wherein  the  same  were  to  be  so  manufactured  as  aforesaid, 
and  to  employ  divers  persons  in  and  about  the  manufacture  of 
such  cloaks  and  garments,  and  then  and  there  undertook  and 
promised,  to  wit,  at  the  county  aforesaid,  on  the  day  and  year 


476  ANNOTATED  FORMS  OP   PLEADING   AND   PRACTICE 

last  aforesaid,  in  consideration  of  the  premises,  and  in  considera- 
tion that  the  said  plaintiff  aforesaid  would  manufacture  and 
make  for  him,  the  said  defendant,  ladies'  cloaks  and  garments 

to  the  amount  of J .  .    ($ )   dollai-s  as  the  same 

should  be  ordered  by  him,  the  said  defendant,  and  would  deliver 
said  cloaks  and  garments  when  completed,  to  said  defendant, 
and  he,  the  said  defendant,  then  and  there  undertook  and  prom- 
ised the  said  plaintiff  to  accept  cloaks  and  garments  of  said 
plaintiff  when  so  manufactured  and  made,  and  pay  him  for 
the  same,  the  said  cost  price  thereof,  to  wit,  the  amount  of 

($ )  dollars  together  with  a  profit  of 

per  cent  of  such  cost  price  of  such  cloaks  and  garments  on  the 
delivery  of  them,  from  time  to  time  as  the  same  were  ordered 
and  delivered ;  and  said  plaintiff  avers  that  he,  confiding  in 
said  promises  and  undertakings  of  said  defendant,  to  wit,  on 
the  day  and  year  last  aforesaid,  and  for  a  long  time  thereafter, 
to  wit,  at  the  county  aforesaid,  purchased  a  large  amount  of 
cloths,  trimmings,  and  other  goods  and  chattels  used  in  and 
about  the  manufacture  and  making  of  the  said  cloaks  and  gar- 
ments, and  samples  thereof,  for  the  said  defendant,  and  also 
purchased  a  lot  of  machinery  and  apparatus  used  in  and  about 
the  manufacture  of  such  cloaks  and  garments,  and  leased  and 
rented  the  premises  and  fitted  the  same  up  for  the  purpose  of 
so  manufacturing  such  cloaks  and  garments  as  aforesaid,  and 
also  employed  and  hired  divers  persons  in  and  about  the  manu- 
facture of  the  same,  and  did,  to  wit,  at  the  county  aforesaid, 

for  a  long  time  thereafter,  to  wit,  for  the  period  of 

months  after  the  day  and  year  last  aforesaid,  manufacture 
cloaks  and  garments  for  the  said  defendant  as  a  part  and  parcel 
of  the  said  cloaks  and  garments  so  to  be  accepted  by  said  defend- 
ant, to  wit,  a  part  and  parcel  of  said  cloaks  to  the  amount  of 

($ )  dollars. 

And  plaintiff  avers  that  being  so  induced  to  purchase  said 
cloths,  materials,  machinery  and  apparatus,  and  to  lease  and 
rent  premises  and  to  fit  the  same  up  and  to  employ  divers  per- 
sons in  and  about  the  manufacture  of  said  cloaks  and  garments 
and  to  manufacture  and  make  the  same,  he,  said  plaintiff,  was 
ready  and  willing  and  then  and  there  offered  to  deliver  the 
same  to  the  said  defendant,  and  requested  him  to  accept  the 
same  as  well  as  the  remainder  of  said  quantity  so  to  be  manu- 
factured for  said  defendant ;  all  of  which  said  premises  the 
defendant  then  and  there  had  notice;  and  he  did  then  and 
there  submit  to  said  defendant  such  cloaks  and  garments  so 
manufactured  by  said  plaintiff  for  the  said  defendant,  which 
said  cloaks  and  garments  plaintiff  avers  were  duly  approved  of 
by  the  said  defendant ;  yet  the  said  defendant  not  regarding  his 
said  promises  and  undertakings  and  knowing  that  by  reason 
of  his  said  promises  and  undertakings,  as  aforesaid,  he  induced 
and  obtained  said  plaintiff  to  buy  said  goods,  clothes  and  ma- 
terial, and  the  said  machinery  and  apparatus  necessary  for  the 


ASSUMPSIT  477 

manufacture  of  such  cloaks  and  garments,  and  to  lease  and 
tit  up  premises  and  to  employ  and  hire  divers  persons  for  the 
manufacture  of  the  same,  but  contriving  and  intending  to  injure 
plaintiff  in  this  behalf,  did  not  nor  would  then  nor  at  any  other 
lime  accept  said  goods  and  chattels  so  made  and  manufactured 
by  said  plaintiff  or  any  part  thereof,  nor  pay  him,  the  said 
plaintiff,  said  price  thereof  or  any  part  thereof,  but  he  to  do  so 
wholly  failed,  and  still  wholly  fails  and  refuses  so  to  do,  to  wit, 
at  the  county  aforesaid ;  nor  would  he  order  nor  accept  from  the 
said  plaintiff,  the  remainder  of  the  said  cloaks  and  garments 
so  to  be  manufactured  by  the  said  plaintiff  for  the  said  defend- 
ant, to  wit,  to  the  amount  of ($ )   dollars, 

but  to  do  so  neglected  and  absolutely  refused  and  still  refuses 
to  accept  or  receive  the  same  or  any  part  thereof,  to  wit,  at  the 
county  aforesaid. 

And  plaintiff  avers  that  in  consideration  of  said  promises  and 
undertakings  of  the  said  defendant  as  aforesaid,  and  the  breach 
thereof  by  the  said  defendant,  he,  the  said  plaintiff,  was  obliged 
to  and  did  sell  said  cloaks  and  garments  so  manufactured  and 
made  for  the  said  defendant  at  a  great  sacrifice,  to  wit,  at  the 
sacrifice  of  fifty  per  cent  of  the  value  thereof;  and  being  in- 
duced by  said  defendant  as  aforesaid,  and  in  order  to  keep  and 
perform  his  said  promise  and  undertaking  to  manufacture  such 
cloaks  and  garments,  he,  the  said  plaintiff,  was  obliged  to  and 
did  pay,  lay  out  and  expend  for  help  and  labor  in  and  about  the 
manufacture  of  said  cloaks  and  garments,  a  large  sum  of  money, 

to  wit,  the  sum  of ($ )  dollars,  and  also 

for  machinery  and  apparatus  necessary  and  used  in  and  about 
the  manufacture  of  the  same,  a  large  sum  of  money,  to  wit,  the 

sum  of ($ )  dollars,  and  also  for  the  rental 

and  fitting  up  of  the  premises  necessary  and  used  in  and  about 
the  manufacture  of  said  cloaks  and  garments  a  large  sum  of 

money,  to  w4t,  the  sum  of ($ )   dollars ;  of 

all  of  which  said  premises  said  defendant  had  notice,  to  wit, 
at  the  county  aforesaid,  whereby  said  plaintiff  has  lost  and  been 

deprived  of  the  benefit  of  said per  cent  of  said  sum  of 

($ )   dollars,  so  to  be  paid  to  him  for  the 

manufacturing  and  delivering  of  said  cloaks  and  garments  to 
the  said  defendant  as  aforesaid ;  and  he  was  also  obliged  to  and 
did  sustain  great  loss  and  injury  by  selling  said  cloaks  and  gar- 
ments so  manufactured,  at  a  sacrifice;  and  he  was  obliged  to 
and  did  pay,  lay  out  and  expend  large  sums  of  money  for  help 
and  labor  by  fitting  up  said  premises  in  and  about  the  manufac- 
ture of  said  cloaks  and  garments  as  aforesaid ;  and  he  was 
obliged  to  and  did  sustain  great  loss  in  and  about  the  disposition 
of  the  cloths  and  materials  purchased  by  said  plaintiff  for  the 
purpose  of  carrying  out  his  promise  and  undertaking  in  the 
premises;  and  he  was  obliged  to  and  did  pay  out  large  sums 
of  money  for  and  on  account  of  rental  for  premises  to  be  used 
for  the  purpose  of  manufacturing  said  cloaks  and  garments,  and 


478  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

for  machinery  purchased  for  the  purpose  of  manufacturing  said 
cloaks  and  garments  for  said  defendant;  of  all  of  which  said 
defendant  had  notice,  to  wit,  at  the  county  aforesaid.  Where- 
fore plaintiff  says  he  is  injured  to  the  extent  of 

($ )  dollars,  therefore,  he  brings  his  suit,  etc. 

1050  Manufactured    building    material,    acceptance    refused, 

Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the    

day  of    ,   19..,   at    ,   to  wit,   at  the 

county  aforesaid,  in  consideration  that  the  plaintiff.  .  would 
make  or  cause  to  be  made  and  furnished  for  the  defendant., 
at  h. .  request  (Describe  goods  to  be  made),  and  set  same  up 

ready  for  use  in  defendant.  . '  new  building  in at 

and  for  the  price  of   dollars,  and  would  deliver 

to  .  .h.  .  the  said  (Describe  goods)  and  set  up  in  said  building 
on  the day  of ,  19. .,  .  .h. .,  the  de- 
fendant. .,  promised  the  plaintiff.  .  to  accept  of  .  .h. .  the  said 
(goods)  when  the  same  should  be  so  made,  and  to  pay  ..h.. 
the  said  price  for  the  same,  on  the  delivery  thereof  as  aforesaid. 
And  the  plaintiff.,  aver.,  that  ..he.,  did  afterwards,  to  wit, 
on,  etc.,  there  make  the  said  (Describe  goods)  for  the  defend- 
ant. .,  and  thereupon  then  and  there  ....  ready  and  willing 
and  offered  to  deliver  the  same  to  .  .h. .  and  requested  .  .h.  .  to 
accept  and  pay  for  the  same  as  aforesaid.  Yet,  the  defendant.  . 
did  not,  nor  would  then  or  at  any  other  time  accept  of  the 
plaintiff'.  .  .  the  said  (Describe  goods)  or  pay.  . .  .  therefor  the 
price  aforesaid,  or  any  part  thereof,  but  refuses  so  to  do.  (Add 
common  counts) 

1051  Manufacturing  goods  per  sample,  refusal,  Narr.  (111.) 

For  that  whereas,  on,  to  wit, ,  19 .  . ,  in , 

in  the  county  aforesaid,  the  plaintiff..,  at  the  request  of  the 
defendant .  . ,  bargained  for  and  agreed  to  buy  of  the  defend- 
ant. .  a  large  quantity,  to  wdt,  gross  of  wood  ink 

bottles, gross  of  bottoms  for  bottles, 

gross  of  tops  for  bottles, gross  of  necks  for  bottles, 

and  such  other  goods  of  the  same  quantity  as  the  plaintiff.  . 

should  require  for  use  in  .  .  h .  .  business  during  the  year , 

the  plaintiff.  .  being  then  and  there  a  manufacturer  of  inks  and 
blueing;  that  such  goods  were  bargained  for  by  the  plaintiff.  . 
from  the  defendant.  .   on  the  following  terms,  that  is  to  say, 

gross  two  ounce  bottles  like  sample,  marked  "A," 

at  (State  price),  said  order  having  been  given  on  the  basis  of 
the  prices  being  outside  figures,  and  orders  in  addition  to' the 
above  having  been  left  open  to  competition;  it  being  agreed 
between  the  plaintiff.,  and  the  defendant.,  that  the  defend- 
ant .  .  w . .  .  .  bound  to  manufacture  during  the  year , 


ASSUMPSIT  479 

in  addition  to  said  order,  all  of  the  goods  of  like  character  as 
was  stated  in  the  contract,  which  plaintiff. .  needed  for  use  in 
.  .h.  .  business  at  prices  not  exceeding  prices  named  in  said  con- 
tract, which  said  contract  and  order  above  referred  to  is  here- 
to attached,  marked  exhibit  "A."  And  thereupon,  in  consid- 
eration of  the  premises  and  that  the  plaintiff.  .  had  promised 
the  defendant.,  at  .  .h.  .  request  to  accept  the  delivery  and 
shipment  of  all  of  the  goods  mentioned  in  the  above  described 
contract  and  order  as  aforesaid,  and  to  pay  the  defendant. .  for 
the  same  at  the  rates  in  said  contract  mentioned  as  aforesaid, 
in  the  county  aforesaid,  said  defendant.  .  promised  said  plain- 
tiff. .  that  ..h..,  the  defendant..,  would,  within  a  reasonable 
time  then  next  following,  procure  to  be  delivered  and  shipped 
to  the  plaintiff.,  in  manner  aforesaid  the  s<iid  quantity  of 
goods  above  mentioned  of  the  quality  called  for  by  the  samples 
above  referred  to,  at  the  prices  above  named  and  contained  in 
said  contract,  and  such  other  goods  of  the  same  quality  and 
at  the  same  prices  as  are  named  in  said  contract  to  which  refer- 
ence is  made.    That  the  time  for  making  shipment  and  delivery 

as  aforesaid  has  long  since  elapsed  and  the  plaintiff.,   w 

always  during  and  since  that  time  ready  to  accept  the  delivery 
and  shipment  of  all  such  goods  described  in  said  agreement  and 
such  other  goods  as  .  .he.  .  might  order,  and  to  pay  for  the  same 
as  aforesaid,  whereof  the  defendant .  .  then  had  notice ;  yet,  the 
defendant.,  (though  often  thereto  requested),  did  not  nor 
would  within  such  reasonable  time  or  afterwards  procure  to  be 
delivered  or  shipped,  for  the  plaintiff.,  in  manner  aforesaid, 
or  otherwise,  the  said  amount  of  manufactured  goods  of  quality 
aforesaid  or  any  such  goods  whatever,  but  refused  and  still 
refuse . .  so  to  do. 

By  means  whereof,  the  plaintiff.,  ha.,  been  deprived  of 
great  gains  and  profits  which  .  .he.  .  might  and  otherwise  would 
have  acquired,  being  unable  to  place  ..h..  inks  and  blueing 
therein  and  to  put  the  same  upon  the  market,  at  the  time  when 
it  would  have  been  most  advantageous  for  .  .h.  .  to  do  so;  but 
the  plaintiff.  .,  on  account  of  the  failure  and  refusal  of  the  de- 
fendant. .  to  carry  out  said  contract,  w compelled  to  pur- 
chase manufactured  goods  of  the  same  character  as  those  which 
were  to  be  furnished  by  the  defendant. .,  paying  therefor  prices 
much  higher  than  the  prices  agreed  upon  in  the  said  contract; 
and  the  plaintiff..,  relying  upon  the  promises  of  the  defend- 
ant. .  in  said  agreement  entered  into  between  .  . .  .sel. . .  .  and 

the  defendant.  .,  disposed  of  a  large  quantity,  to  wit, 

dollars'  worth  of  glass  goods  owned  by  the  plaintiff.  .,  intended 
for  use  in  and  about  the  business  of  the  plaintiff.  .,  discounting 

the  same  at  the  rate  of per  cent  with  the  intention 

of  substituting  them  by  goods  bargained  for  of  the  defend- 
ant.., for  the  glass  goods  so  sold  at  a  sacrifice  by  the' plain- 
tiff. .  ;  and  the  plaintiff.  .  say.  .  that  by  reason  of  having  relied 
upon  the  promise  of  the  defendant.  .  to  furnish  the  goods  men- 


480  ANNOTATED  FORMS  OF  PLEADING  AND   PRACTICE 

tioned  in  said  agreement,  and  so  relying  upon  the  promises  of 
the  defendant.  .  having  sold  the  glass  goods  then  owned  by  the 
plaintiff.  .,  and  the  defendant.  .  not  having  furnished  the  goods 
agreed  to  be  furnished  by  ..h..,  the  plaintiff.,  w....  pre- 
vented from  placing  .  .h. .  inks  and  blueing  upon  the  market, 

for  a  long  space  of  time,  to  wit,  for  about  the  space  of 

months,  and  w . , .  .  thereby  deprived  of  great  gains  and  profits 
which  .  .h. .  might  have  acquired  by  being  enabled  to  sell  .  .h. . 
own  goods  put  up  in  the  packages  bargained  for  of  the  defend- 
ant..; wherefore  the  plaintiff'.,    say.,   that   ..he 

injured  and  ha.  .  sustained  damage  to  the  amount  of 

dollars;  and  therefore  bring.  .  .  .h.  .  suit. 

1052  Manufacturing  plant,  refrigerating  system,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the day 

of ,  19.  .,  at,  to  wit,  in  the  county  aforesaid,  the 

plaintiff  and  defendant  made  and  entered  into  a  certain  agree- 
ment in  writing  of  which  the  following  is  a  true  copy,  and 
thereby  mutually  undertook  and  promised  as  is  therein  set  forth, 
to  wit:     (Set  forth  agreement  in  liacc  verba). 

And  thereafter,  on,  to  wit,  the day  of , 

19 . . ,  at    ,  in  the  county  aforesaid,   the  plaintiff 

and  defendant  made  and  entered  into  a  certain  other  agreement 
in  writing  additional  and  supplemental  to  said  agreement  of 

,  19. .,  above  set  out,  of  which  the  following  is  a 

true  copy,  and  thereby  mutually  undertook  and  promised  as 
is  therein  set  forth,  to  wit:    (Set  out  agreement  referred  to). 

And  the  plaintiff  avers  that  after  the  execution  of  said  con- 
tract and  supplemental  contract,  and  as  full  compliance  there- 
with, it  furnished  and  erected  in  the  premises  specified  in  said 
contract  and  supplemental  contract,  a  refrigerating  plant,  and 

delivered  the  same  to  said  defendant  on  or  about  the 

day  of ,  19 . . ,  at ,  in  the  county  afore- 
said; and  that  the  said  defendant  then  and  there  accepted  the 
same  as  in  compliance  with  said  contract  and  supplemental  con- 
tract, and  is  now  using  the  same. 

And  the  plaintiff  further  avers  that  after  the  delivery  of  said 
machinery  by  plaintiff  at  the  premises  of  defendant,  the  defend- 
ant paid  to  the  plaintiff  on  account  thereof  the  sum  of 

dollars,  and  that  upon  the  acceptance  of  said  refrigerating  plant 
by  the  defendant  as  aforesaid,  the  defendant  became  indebted 
to  the  plaintiff  for  the  balance  of  the  purchase  price  of  said  re- 
frigerating plant,  as  provided  in  said  contract  and  supplemental 

contract,  to  wit,   dollars ;  and  being  so  indebted, 

the  defendant  then  and  there  faithfully  promised  the  said  plain- 
tiff well  and  truly  to  pay  unto  the  said  plaintiff  the  sum  of  money 
last  mentioned,  when  the  said  defendant  should  be  thereunto 
afterwards  requested.  (Add  consolidated  common  counts) 
Nevertheless,  etc. 


ASSUMPSIT  481 

1053  Mechanic's  lien;  subcontractor,  action 

A  subcontractor  may  bring  assumpsit  against  the  owner  and 
the  contractor  to  enforce  a  mechanic 's  lien.^* 

1054  Mechanic's  lien,  notice  (Fla.) 

To  

Notice  is  hereby  given  you  that  I  have  performed  labor  upon 
your  house,  which  was  built  on  the  hereinafter  described  lot, 
such  labor  consisting  of  (Set  forth  the  nature  of  the  labor); 

that  said  labor  was  performed  for    ,  contractor ; 

that  the  amount  due  him  for  such  labor  is dollars 

and cents ;  that  the  lot  referred  to  is  (Describe 

property)  ;  and  that  I  claim  and  intend  to  hold  a  lien  on  your 
house  and  lot  mentioned  for  such  labor  performed  and  for  said 
amount. 

Dated,  etc. 


(Character  of  workman) 
Affidavit 


(Venue) 

Before  the  undersigned  authority  personally  appeared , 

to  me  well  known  to  be  the  person  who  signed  the  foregoing 
notice,  and  who,  being  duly  sworn,  says  that  the  facts  therein 

stated  are  true  and  that  the  sum  of dollars  and 

,  cents  stated  therein  to  be  due  him  on  said  ac- 
count, is  due,  just  and  true  and  remains  unpaid. 


Subscribed,  etc. 

(Illinois) 

To  (name  owner) 

You  are  hereby  notified  that  I  have  been  employed  by  (Name 
contractor)  to  (State  nature  of  contract  or  w^ork  done,  or  to  be 
done,  or  of  what  the  claim  is  for),  under  his  contract  with  you, 

on  your  property  (Set  forth  substantial  description)  at , 

and  that  there  was  due  me  (or  is  to  become  due  me  therefor), 
the  sum  of dollars. 

Dated  at ,  this  day  of  ,  19 . . 

95 


94Harty    Bros.    v.    Polakow,    237  ss  See.    24.    c.    82,    Hurd's    Stat. 

lU.  559,  566,  567   (1909).  1911,  p.   1845. 


482  ANNOTATED   FORMS   OF   PLEADING    AND   PRACTICE 

1055  Mechanic's  lien,  Narr.  (Pla.) 

sues ,  as  his  contractor,  for  money 

due  for  labor  performed  and  materials  furnished  for  (Describe 
character  of  work),  on  the  residence  of  said  defendant,  situate 
on  lot  (Describe  property),  the  said  work  having  been  per- 
formed and  the  materials  having  been  furnished  during  the 
year  of ,  at  the  separate  request  of ,  as  con- 
tractor, and  of ,  as  owner. 

And  the  plaintiff  prays  the  court  for  a  judgment  herein  and 
that  the  said  property,  to  wit:  (Describe  as  before)  be  sold  to 
satisfy  his  lien. 

Bill  of  particulars 

The  following  amounts  are  due ,  from , 

as  his  contractor,  to  wit: 

Year        I       Name       !       Kind  of  work       I        Amount 


1056  Money  had  and  received,  action 

An  action  for  money  had  and  received  is  equitable  in  its 
nature  and  generally  lies  for  money  which  the  defendant  ought 
to  refund  in  justice  and  fair  dealing  {Ex  aequo  et  hono).^^ 
Money  which  had  been  paid  voluntarily  under  a  mistake  of  law, 
or  under  a  claim  of  right  to  the  payment,  with  knowledge  of  the 
facts  by  the  person  making  the  payment  cannot  be  recovered  back 
on  the  ground  that  the  claim  was  illegal,  unless  the  payment  had 
been  made  under  a  controlling  necessity  arising  from  the  particu- 
lar circumstances  amounting  to  a  compulsion.^''  Thus,  money 
paid  under  protest  to  a  party  or  a  corporation  who  had  no  right 
to  receive  it  and  the  payment  was  made  to  prevent  injury  to  per- 
son, business  or  property  of  the  payor  ;9s  money  paid  as  the 
only  means  to  recover  possession  of  one's  own  property ;^^  and 

86  Ward  V.  Bull,  1  Fla.  271,  278  9s  Chicago  v.  Northwestern  Mutual 

(1847).  Life  Ins.  Co.,  218  111.  40,  44  (1905). 

97  Chicago  V.   McGovern,   226  111.  99  Spaids  v.  Barrett,  57  111.  289,. 

403,   406    (1907);    Cook   County   v.       293    (1870). 
Fairbank,  222  111.  578,  589  (1906); 
Illinois  Glass  Co.  v.   Chicago   Tele- 
phone Co.,  234  111.  535,  541  (1908). 


ASSUMPSIT  483 

money  realized  from  the  wrongful  conversion  and  sale  of  per- 
sonal property  may  be  recovered  back  in  this  form  of  action.^"^ 
To  render  the  payment  compulsory,  the  pressure  brought  to 
bear  upon  the  person  paying  must  have  been  such  as  to  inter- 
fere with  the  free  enjoyment  of  his  rights  of  person  or  property, 
and  the  compulsion  must  have  furnished  the  motive  for  the  pay- 
ment sought  to  be  avoided. ^''^ 

An  action  for  money  had  and  received  is  appropriate  to  com- 
pel a  city  to  pay  over  a  special  assessment  which  has  been  levied 
and  collected,  and  nothing  remains  to  be  done  but  to  pay  it;io2 
to  recover  back  taxes  which  have  been  paid  involuntarily  upon 
a  void  assessment  ;i"^  and  to  recover  from  the  sheriff  the  sur- 
plus that  belongs  to  a  judgment  debtor  upon  an  execution  sale 
and  the  satisfaction  of  the  judgment. ^"^ 

A  party  who  has  a  right  of  action  ex  delicto  may  waive  the 
tort  or  wrong  and  sue  in  assumpsit  for  money  had  and 
received.  ^^^ 

A  partner  cannot  sue  a  co-partner  in  assumpsit  for  money  ad- 
vanced to  him  in  furtherance  of  the  partnership,  i"^*^ 


1057  Money  had  and  received;  insurance  money  received  by 
factor,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the day 

of  ,  19. .,  the  defendant. .,  w. .  and  from  thence 

hitherto  ha. .  been  engaged  in  the  business  of  selling  produce 

on  commission  at   ,  to  wit,  in  said   

county,  and  that,  afterwards,  to  wit,  on  the  day  and  year  last 

aforesaid,  at ,  to  wit,  at  said county, 

the  plaintiff. .  entered  into  an  agreement  in  writing  bearing 
date  the  day  and  year  last  aforesaid  with  the  defendant. . 
under  the  style  of ,  whereby  the  plaintiff.  .  prom- 
ised to  ship  the  defendant..,  to  wit,  one  or  more  carloads  of, 
to  wit,  ,  and  in  consideration  thereof  the  defend- 
ant. .  promised  to  receive  and  sell  the  same  for  and  on  account 

100  Watson  v.  Stever,  25  Mich.  386,  io4  Commerce  Vault  Co.  v.  Barrett, 
387  (1872).  222  111.  169,  176   (1906). 

101  Illinois    Glass   Co.    v.    Chicago  los  May  v.  Disconto  Gesellschaft, 
Telephone  Co.,  234  111.  535,  543.  211  111.  310,  315  (1904). 

102  Conway  v.   Chicago,    237    HI,  loo  Hartzell    v.    Murray,    224    111. 
128,  135   (1908).  377  (1906). 

103  Nicodemus    v.    East    Saginaw, 
25  Mich.  456,  458   (1872). 


484  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

of  the   plaintiff.  .    for  a   reasonable   compensation   to  be  paid 

by  the  plaintilit'.  .  therefor  and  to  keep  said insured 

against  loss  or  damage  by  fire  for  the  benefit  of  plaintiff. .,  so 
long  as  said  should  be  in  the  defendant. .  pos- 
session and  remain  unsold. 

And  the  plaintiff. .  aver. .  that  relying  upon  the  said  prom- 
ises of  defendant.,   the  plaintiff.,   afterwards,  to  wit,  on  the 
day  of ,  19  •  • ,  shipped  to  the  defend- 
ant.'.,  under  the"^  style  of ,  one  carload  of,  to  wit, 

,  to  wit,  (Describe  contents  of  car),  weighing  in 

the  aggregate,  to  wit, pounds,  and  that  afterwards, 

to  wit,  on  the    day  of    ,  19 . . ,  the 

plaintiff.,    shipped    to    the    defendant..,    under   the    style    of 

,  an  additional  carload  of ,  weighing 

in  the  aggregate,  to  wit, pounds ;  that  the  defend- 
ant. .    afterwards,  to  wit,  on  the  day  and  year  last  aforesaid 

received  said  and  placed  the  same  in  storage  in 

the  name  of ,  at,  to  wit,  at  the  warehouse  of  the 

,  to  wit,  at  said county ;  that  on,  to 

wit,  on  the day  of ,  19.  .,  there  re- 
mained unsold  and  so  as  aforesaid  stored  in  said  warehouse  and 

in  possession  of  defendant .  . ,  to  wit,   pounds  of 

said ;  that  prior  to  the  day  and  year  last  aforesaid 

the  defendant. .  had  procured,  to  wit,  divers  insurance  policies 

of  insurance  upon  the  said ;  and  that  on  the  day 

and  year  last  aforesaid,  and  while  the  said  policies  of  insurance 
were  in  full  force,  a  fire  occurred  at  said  warehouse  and  dam- 
aged the  goods  of  said  plaintiff. .  so  stored  as  aforesaid;  that 
the  defendant. .  then  and  there  made  claim  upon  the  insurance 
companies  that  had  issued  said  policies  of  insurance  that  said 

so  as  aforesaid  in  store  in  said  warehouse  was 

damaged  by  reason  of  said  fire ;  that  afterwards,  to  wit,  on  the 
day  and  year  last  aforesaid,  the  defendant.,  made  a  set- 
tlement with  said  insurance  companies  for  said  damages  to 
said so  in  storage  as  aforesaid  and  that  said  insur- 
ance companies  then  and  there  paid  to  the  defendant. .  as  dam- 
ages sustained  by  reason  of  said  fire  the  sum  of • 

cents  per  pound  upon  each  pound  of  said  so  m 

store  at  said  warehouse  and  in  possession  of  defendant. .  at  the 
time  of  said  fire. 

And  plaintiff.,    further  aver.,   that  the  defendant.,   after- 
wards, to  wit,  on  the  day  and  year  last  aforesaid,  sold  the  said 

for  and  on  account  of  the  plaintiff.  .  ;  that  said 

piai'ntiff.  .  ha. .  paid  to  the  defendant.  .  the  full  amount  of  the 
premium  paid  by  the  defendant .  .  for  the  said  insurance  on  said 
and  ha.  .  paid  to  the  defendant. .  the  full  com- 
pensation   charged   by   the   defendant.  .    for   the   sale   of   said 

and  ha. .  also  paid  to  the  defendant. .  all  other 

charges  and  expenses  made  or  sustained  by  the  defendant.  .  in 
and  about  the  handling  or  selling  the  said. . ;  yet,  the  defend- 


ASSUMPSIT  485 

ant. .  ha, .  neglected  and  refused  and  still  neglect. .  and  refuse. . 
to  pay  to  the  plaintiff.  .  the  said  sum  of  money  so  collected  and 
received  by  the  defendant .  . ,  from  the  said  insurance  companies 

as  damages  sustained  upon  the  said ,  the  property 

of  the  plaintiff..,  by  reason  of  said  fire,  whereby  the  defend- 
ant.,   became  liable  to  pay  to  the  plaintiff.,    the  sum  of,  to 

wit,   dollars,  and  being  so  liable  the  defendant .  . 

then  and  there  promised  the  plaintiff.  .  to  pay  .  .h.  .  the  same 
when  . .  he . .  should  be  thereto  afterwards  requested.  Never- 
theless, etc. 

1058  Money  had  and  received ;  purchase  price  under  rescinded 
contract,  Narr.  (111.) 

For  that  whereas,  on  the day  of , 

19 . . ,  in  the  county  aforesaid,  the  defendant  entered  into  a  con- 
tract in  writing  with  the  plaintiff  in  the  words  and  figures  fol- 
lowing, to  wit:     (Set  out  contract). 

And  the  plaintiff  avers  that  he  then  and  there  paid  to  the 
defendant  the  sum  of  ($ )  dollars  pursu- 
ant to  the  terms  of  said  contract;  that  afterwards,  the  said  de- 
fendant delivered  to  the  plaintiff  an  abstract  of  title  of  said 
described  land  as  a  true  and  correct  abstract  of  title  to  said 
land,  and  assured  plaintiff  that  said  abstract  contained  a  true 
and  correct  history  of  the  source,  nature  and  condition  of  de- 
fendant's title  to  said  land  at  the  time  said  abstract  was  deliv- 
ered, upon  which  said  abstract  plaintiff  might  safely  and  solely 
rely  to  ascertain  the  source,  nature,  condition  and  sufficiency 
of  defendant's  title  to  said  land  and  defendant's  right  and  abil- 
ity to  convey  and  assure  under  said  contract  to  plaintiff  by  a 
good  and  sufficient  warranty  deed  said  described  land  in  fee 
simple  clear  of  all  incumbrances  whatsoever;  that  plaintiff  re- 
ceived said  abstract  for  examination  and  relied  on  the  contents 
and  representations  thereof ;  that  an  examination  of  said  abstract 
disclosed  clouds  and  incumbrances  on  and  over  said  title  as 
follows,  to  wit : 

The  patent  from  the  United  States  government  to  said  land 

was  granted ,  1 .  .  .  . ,  to  J,  M,  J  J,  D  and  K ;  that 

subsequently  thereto,  D,  L  D  pretend  to  convey  said  described 
lands  to  parties  through  whom  defendant  derives  title,  no  con- 
veyance by  the  original  patentees  being  shown  by  said  abstract 
and  no  sufficient  evidence  being  disclosed  that  the  said  grantors 
and  the  said  patentees  were  identical ;  that  said  M  died  prior  to 

,  19 .  . ,  without  probate  of  his  estate  and  proof  of 

heirship,  and  said  abstract  does  not  show  that  all  the  heirs  of 
said  M  conveyed  the  interest  of  said  M,  deceased,  to  any  one 
in  the  chain  of  title  through  which  defendant  pretends  to  have 
acquired  title ;  that  documents  numbers  .  .  .  . ,  ....  and  ....  of 
said  abstract  show  a  partition  proceeding  attempted  to  be  made 
by  the  heirs  of  one  P,  to  whom  title  is  pretended  to  have  passed, 


486  ANNOTATED   FORMS  OP   PLEADING  AND  PRACTICE 

one  of  said  heirs  named  P  being  a  minor,  over  whom  the  court 
entertaining  said  partition  proceeding  had  no  jurisdiction  and 
whose  rights  and  interests  in  said  described  land  were  not  by 
said  proceeding  concluded  and  who  is  not  by  said  proceeding 
bound;  that  said  abstract  does  not  disclose  the  heirs  of  said  P, 
and  that  the  title  to  said  described  land  is  subject  to  the  rights 
of  any  person  who  may  be  shown  to  be  the  heir  of  P,  other  than 
those  mentioned  in  said  partition  proceeding;  that  the  court 
in  said  proceeding  had  no  right  or  authority  to  order  a  sale 
of  said  described  land,  and  the  rights  of  the  heirs  of  said  P 
were  not  by  the  sale  in  said  proceeding  ordered  concluded ;  that 
said  abstract  shows  a  mortgage  of  said  described  land  in  the 
state  of ,  which  said  mortgage  is  not  by  due  author- 
ity canceled  and  released;  that  in  said  partition  proceeding  a 

sale  of  the  said  described  land  was  made  by  one 

without  any  authority  from  the  court  ordering  said  sale,  the 
person  by  said  court  appointed  to  make  said  conveyance  being 

known  and  described  as ;  and  that  said  described 

property  was  then  and  there  subject  to  the  rights  of  parties 
then  and  there  in  possession,  the  names  of  whom  are  to  plaintiff 
unknown. 

Plaintiff  further  avers  that  there  was  then  and  there  in  full 

force  and  effect  in  the  state  of ,  and  continued  to 

be  in  full  force  and  effect  until  the  commencement  of  this  suit, 
the  following  law,  to  wit:    (Set  out  statute). 

And  the  plaintiff  further  avers,  that  afterwards,  to  wit,  on 

and  after  the day  of ,  19 . . ,  he,  the 

said  plaintiff,  was  ready  and  willing,  and  offered  to  execute  and 
deliver  to  the  said  defendant  a  trust  deed  upon  said  described 

property  securing  the  payment  of  the  sum  of    

($ )    dollars,  due  in   years  from  the  date 

thereof,  with  interest  at  the  rate  of per  cent  per  annum, 

payable  semi-annually,  on  the  whole  sum  remaining  unpaid, 
and  to  pay  all  taxes,  assessments  or  impositions  that  may  be 
legally  levied  or  imposed  upon  said  land  subsequent  to  the  year 
19. .  ;  that  the  said  defendant  was  then  and  there  informed  of 
the  above  mentioned  defects,  clouds  and  incumbrances  upon 
said  title;  that  by  reason  of  said  clouds,  incumbrances  and  de- 
fects in  said  title,  and  the  operation  of  the  statute  law  of  the 

state  of   ,  said  defects,  clouds  and  incumbrances 

were  then  and  there  subsisting  clouds  and  incumbrances  upon 
said  title ;  that  the  defendant  was  then  and  there  unable  to  con- 
vey and  assure  to  the  plaintiff  in  fee  simple  clear  of  all  incum- 
brances whatever,  by  a  good  and  sufficient  warranty  deed,  the 
said  described  piece  and  parcel  of  land,  though  requested  so 
to  do  by  the  plaintiff ;  and  that  thereupon  the  plaintiff  rescinded 
said  contract ;  and  that  the  defendant  then  and  there  by  reason 
of  said  premises  became  and  was  indebted  to  the  plaintiff  in  the 

sum  of ($ )  dollars  theretofore  paid  by  the 

plaintiff  to  the  defendant  as  aforesaid;  and  being  so  indebted. 


ASSUMPSIT  487 

the  defendant,  in  consideration  thereof,  then  and  there  promised 
to  pay  him  the  said  sum  of  money  on  request.  Yet  the  defend- 
ant, though  requested,  has  not  paid  the  same  or  any  part  thereof, 
but  refuses  so  to  do ;  to  the  damage  of  the  plaintiff  in  the  sum 

of ($ )  dollars,  and  therefore,  he  brings  his 

suit,  etc.i"^     (Add  money  counts) 

1059  Money  stolen,  Narr.  (Md.) 

For  that  the  defendant  is  indebted  to  the  plaintiff  in  the 

sum  of  $ ,  for  moneys  stolen  by  the  defendant  from 

the  plaintiff  while  he,  the  said  defendant,  was  a  clerk  in  the 

office  of  the ,  and  acting  as  such  in 

the  said  office  of  the  ,  and  in  the 

employment  of  the  plaintiff*  as  such,  which  said  $ 

at  the  time  of  such  theft,  as  aforesaid,  by  the  defendant,  was  the 
property  of  the  plaintiff,  and  which  said  property  and  money, 
so  stolen  by  the  defendant  as  alleged,  the  defendant  has  taken 
away  and  appropriated  to  his  own  use  and  refuses  and  has 
refused  and  still  refuses  to  pay  the  same  to  the  plaintiff. 

And  the  plaintiff'  claims  $ 

1060  Paving  under  viaduct,  action 

In  the  absence  of  contract,  a  municipality,  under  its  police 
power,  cannot  require  a  railway  company  to  re-pave,  re-curve 
and  re-sidewalk  a  subway  constructed  by  the  railway  company 
under  its  charter  by  the  elevation  of  its  tracks.  Neither  is  it 
within  the  power  of  the  municipality,  under  its  general  au- 
thority to  compel  railways  to  construct  and  maintain  proper 
crossings  at  streets,  alleys  and  highways,  or  to  maintain  via- 
ducts with  proper  approaches  thereto,  to  force  a  railway  com- 
pany to  re-pave,  etc.,  approaches  to  a  viaduct  which  are  not  legal 
approaches  thereto.  Ordinarily  an  "approach"  is  considered 
a  part  of  the  viaduct.  Its.  determination,  however,  depends  upon 
what  would  be  reasonable  under  the  circumstances  and  the  local 
situation  in  each  case.  The  filling  of  some  of  the  approaches  to 
a  viaduct  pei*manently,  the  full  width  of  the  street,  resulting  in 
a  mere  raising  of  the  street  grade  constitutes  no  part  of  the 
viaduct  or  its  approaches. ^^'^ 

1061  Performance  prevented,  Narr.  (Va.) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the 

day  of at  the in  the  county  of 

lOTEffgers  v.  Busch,  154  HI.  604  los  CMcago  v.  Pittsburgh,  Ft.  W. 

(1895)  &  C.  Ry.  Co.,  247  111.  319    (1910). 


488  ANNOTATED   FORMS  OF   PLEADING  AND   PRACTICE 

,  by  a  certain  agreement  then  and  there  made 

between  the  said  plaintiff  and  the  said  defendant,  the  said 
plaintiff  agreed  to  construct  and  complete  a  certain  barge,  fur- 
nishing all  the  materials  and  labor  in  the  construction  of  the 

same,  the  said  barge  to  be  of  the  dimensions  of  feet 

and feet  in  depth,  and  it  was  further  agreed  that  said 

barge  was  to  be  completed  in  days  from  the  time  of 

its  commencement;  it  was  also  then  and  there  agreed  between 
the  said  plaintiff  and  the  said  defendant,  that  he,  the  said  defend- 
ant, would  pay  unto  the  said  plaintilf,  upon  the  completion  of  the 
said  barge  the  full  sum  of dollars.  And  tlie  said  agree- 
ment being  so  made,  afterwards,  to  wit,  on  the day,  month 

and  year  first  above  written,  in  consideration  thereof,  and  that 
the  said  plaintiff,  at  the  special  instance  and  request  of  the 
said  defendant  had  then  and  there  undertaken  and  faithfully 
promised  the  said  defendant  to  perform  and  fulfill  the  said 
agreement  in  all  things  on  the  said  plaintiff's  part  and  behalf 
to  be  performed  and  fulfilled,  he,  the  said  defendant  under- 
took and  then  and  there  faithfully  promised  the  said  plaintiff 
to  perform  and  fulfill  the  said  agreement  in  all  things  on  said 
defendant's  part  and  behalf  to  be  performed  and  fulfilled.  And 
the  said  plaintiff  had  always  from  the  time  of  the  making  of 
the  said  agreement,  performed  and  fulfilled  all  things  on  his 
part  and  behalf  in  the  said  agreement  to  be  performed  and  ful- 
filled, and  did  afterwards,  to  wit,  on  the day  of 

. . , , ,  enter  upon  and  commence  the  said  work,  and  for 

that  purpose  did  procure  and  find  all  materials  and  labor  neces- 
sary for  performing  same,  and  did  the  same  in  part,  and  hath 
always  been  ready  and  willing  to  perform  and  complete  the 
whole  of  said  work  in  pursuance  of  the  said  agreement;  of  all 
which  premises  the  said  defendant  hath  notice. 

Yet,  the  said  plaintiff  in  fact  sayeth  that  the  said  defendant 
contriving  and  wrongfully  intending  to  injure  said  plaintiff, 
did  not  nor  would,  perform  said  agreement,  nor  his  said  prom- 
ise and  undertaking,  and  wholly  disregarded  the  said  agreement 
and  said  promise  and  undertaking;  and  afterwards,  to  wit,  on 

the day  of ,  did  not,  nor  would,  permit  or  suffer 

the  said  plaintiff  to  proceed  to  complete  the  said  work  and  then 
and  there  wholly  hindered  and  prevented  him  from  so  doing, 
and  then  and  there  wrongfully  discharged  the  said  plaintiff 
from  any  further  performance  or  completion  of  his  said  agree- 
ment and  promise  and  undertaking;  whereby  the  said  plaintiff 
hath  lost  and  been  deprived  of  profits  and  advantages,  which 
he  otherwise  might  and  would  have  derived  from  the  comple- 
tion of  said  work;  and  although  often  requested,  said  defend- 
ant has  not  paid  to  said  plaintiff  the  money  that  is  due  him 
under  the  terms  of  said  contract,  or  any  part  thereof,  to  the 

plaintiff's  damage  in  the  sum  of    dollars;  and 

therefore,  he  brings  this  suit,  etc. 


ASSUMPSIT  489 

1062  Personal  injuries,  action 

Assumpsit,  and  not  case,  is  the  appropriate  remedy  against 
the  principals  and  their  sureties  to  recover  damages  for  per- 
sonal injuries  resulting  to  a  party  from  a  breach  of  any  of  the 
conditions  of  a  contractors'  bond.^^^ 

1063  Personal  injuries;  sidewalk  injury,  Narr.  (Mich.) 

For  that  whereas,  heretofore,  to  wit,  on  the 

day  of  ,  19  •  • ,  the  said  defendants  by  their  writ- 
ing obligatory,  bearing  date  the  day  and  year  aforesaid,  acknowl- 
edged themselves  to  be  held  and  firmly  bound  unto  the  city  of 
,  a    municipal    corporation    in    said    county    of 

[[,, ,  in  the  sum  of dollars,  lawful  money 

of  the  United  States,  to  the  payment  of  which,  well  and  truly 
to  be  made,  they  bound  themselves  and  each  of  their  heirs,  exe- 
cutors, administrators  and  assigns  jointly  and  severally.  And 
in  said  writing  obligatory  it  was  expressly  set  forth  that  whereas, 
the  above  bounden desired  to  engage  in  the  busi- 
ness of  laying  stone  or  cement  sidewalks,  cross-walks  or  curbs 

in  the  city  of ;  and  whereas,  the  common  council 

of  the  said  city,  in  pursuance  of  the  authority  conferred  upon 
it  to  regulate  the   construction  of  sidewalks,  cross-walks  and 

curbs,  did  at  the  regular  meeting  held  on  the day 

of   ,  19..,  adopt  the  following  resolution:     (Set 

out  resolution). 

And  the  said  writing  obligatory  was  upon  the  express  condi- 
tion that  .if  the  said  shall  construct  and  lay  all 

such  stone  or  cement  sidewalks,  cross-walks,  or  curbs,  laid  by 
them  in  said  city,  of  first  class  material,  in  good  and  workman- 
like manner,  upon  and  along  grades  furnished  and  established 
by  the  board  of  public  works,  and  shall  keep  the  same  in  good 

repair  for  a  period  of years  from  and  after  the  date 

of  said  instrument,  and  shall  properly  support  and  protect  all 
the  retaining  walls  upon  the  land  abutting  and  adjoining  where 
said  walks  may  be  laid,  so  as  to  prevent  injury  thereto  by  reason 
of  the  construction  of  any  such  walks  and  curbs,  and  shall  in 
all  things  abide  by  the  rules  and  regulations  made  by  the  said 
board  of  public  works  governing  the  construction  of  said  walks, 
cross-walks  or  curbs  in  said  city,  and  shall  also  protect  and 

save  the  said  city  of  ,  free  and  harmless  from  all 

loss  or  damage  caused  by  said  ,  in  and  about  the 

construction  of  said  sidewalks,  and  shall  indemnify,  protect 
and  save  harmless  all  persons  mentioned  in  the  above  resolu- 
tion, and  for  whose  benefit  said  bond  was  given,  said  bond  being 
given  in  pursuance  of  and  in  compliance  with  the  terms  of  said 

109  Cox  V.  Fidelity  &  Deposit  Co., 
157  Mich.  59,  64,  65  (1909). 


490  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

resolution,  then  said  bond  or  obligation  to  be  void,  otherwise 
to  remain  in  full  force  and  effect.  The  plaintiff  avers  that 
said  writing  obligatory  which  was  by  the  said  defendants  duly 
signed  and  sealed,  was  delivered  and  filed  with  the  board  of 

public  works  of  said  city  of   ,  and  became  from 

thence  and  thereafter  a  valid  and  substantial  obligation  upon 
the  part  of  said  defendant. 

And  plaintiff  avers  that  at  the  time  of  the  making  and  filing 
of  said  writing  obligatory  as  aforesaid,  the  said  defendants  con- 
templated the  construction  of  a  certain  sidewalk  in 

street,  a  legally  constituted  highway  in  said  city  of 

on  the side  thereof,  for  the ,  a  cor 

poration,  by  contract  with  said  company,  along  the  property 
of  said  company,  in  said  city  of ;  that  there- 
after the  said  defendants ,  did  enter  upon  the  con- 
struction of  said  cement  sidewalk  at  the  place  aforesaid,  and 

did  construct  the  same  for  said   ,  under  contract 

with  it ;  and  that  to  protect  said  cement  sidewalk  after  same  was 

constructed  as  aforesaid,  the  said  defendants did 

place  a  certain  wire  netting  across  the  said  sidewalk  at  or  near 
the  place  where  the  said  cement  sidewalk  joined  it,  or  was  con- 
nected w^ith  another  sidewalk  in  said  street,  and  which  in  con- 
nection with  said  sidewalk  formed  a  continuous  walk  along  the 
side  of  said  street  at  the  place  aforesaid. 

The  phiintiff  further  avers  that  among  the  rules  and  regula- 
tions of  the  board  of  public  works  of  said  city  of , 

at  the  time  of  the  construction  of  said  sidewalk  aforesaid,  and 
the  erection  of  the  barrier  aforesaid,  was  a  rule  and  regulation 
that  barriers  erected  as  aforesaid  to  protect  said  walks  as  afore- 
said should  be  of  sufficient  height  to  prevent  persons  using  said 
sidewalks  from  walking  into  said  cement  sidewalks  and  from 
falling  over  said  barriers,  and  that  at  the  same  time  said  board 
of  public  works  had  another  rule  or  regulation  that  in  the 
night  all  barriers  erected  as  aforesaid  should  be  properly  pro- 
tected by  light  or  lamp. 

And  the  plaintiff  avers,  that,  to  wit,  at  the  time  and  place 

aforesaid,  it  was  the  duty  of  the  said  defendants 

to  erect  and  maintain  a  barrier,  at  the  place  aforesaid,  of  suifi- 
cient  height  so  as  to  prevent  persons  from  walking  on  said  walk 
or  falling  over  said  barrier,  and  that  at  the  said  time  and  place 

it  was  also  the  duty  of  said  defendants  to  have 

a  light  or  lamp  in  the  night  time  at  or  near  said  barrier  so 
that  the  same  might  be  seen  and  so  as  to  prevent  any  person 
from  colliding  therewith. 

But  the  plaintiff  avers  that  contrary  to  the   duty  of  said 

,  as  aforesaid,  to  wit,  on  the day  of 

J  19  •  • ,  and,  to  wit,  for days  prior  thereto, 

the  said   had  permitted  said  wire  barrier  to  be 

and  remain  in  a  fallen  down  condition  at  the  place  aforesaid, 


ASSUMPSIT  491 

thereby  failing  to  prevent  a  person  from  walking  on  said  cement 
sidewalk  or  from  stumbling  over  the  same;   and,   to   wit,   on 

said    clay   of    ,    19..,    in   the   night 

time  of  said  day,  said had  utterly  neglected  and 

failed  to  provide  any  light  or  lamp  at  or  about  the  barrier 
aforesaid,  so  that  the  same  might  be  seen;  and  that  by  reason 
of  the  premises,  the  plaintiff  who  on  the  day  and  year  aforesaid, 

in  the  night  time  of  said  day,  at  about  the  hour  of 

noon,  was  lawfully  proceeding  along  said   street 

on  the  sidewalk  thereof,  towards  said  cement  sidewalk,  without 

any  fault  or  negligence  upon    part,  because   of 

the  absence  aforesaid  of  a  light  or  lamp  at  the  place  aforesaid, 
and  because  of  the  fallen  down  condition  of  said  wire  barrier, 

as  aforesaid   ,  the  said  plaintiff    , 

stumbled  over  said  wire  barrier  without  seeing  the  same  and 
was  by  the  said  wire  barrier  thrown  violently  down  upon  the 
said  cement  sidewalk.  By  reason  of  which  ..h..  sustained 
severe  injury  to  head,  right  shoulder,  right  arm  and  side,  and 
right  elbow  and  wrist,  and  right  knee,  and  the  same  became 
bruised,  lame,  sore,  wrenched  and  strained,  and  .  .h. .  whole 
system  was  badly  shocked,  and  by  reason  of  which  .  .h. .  became 
sick,  sore,  lame  and  disordered  and  unable  to  help   ......self 

or  to  pursue  .  .h.  .  ordinary  avocation which  was 

that  of ,  by  means  of  which  avocation  .  .h. ,  was 

enabled  to  earn  and  did  earn  large   sums  of  money,  to  wit, 

dollars  per  month ;  and  has  so  remained,  to  wit, 

from  thence  hitherto;  and  that  by  reason  of  the  premises,  the 
plaintiff  has  been  caused  to  suffer  pain  and  anguish  of  body 
and  mind,  and  will  in  the  future  be  caused  to  suffer  great  pain 
and  mental  and  bodily  anguish;  that  the  plaintiff  has  been 
caused  to  spend  large  sums  for  phj'sicians  and  medicine  in  and 
about  endeavoring  to  be  cured  of  the  injuries  aforesaid,  and 

.  .h. .  has  suffered  injury  in  all  to  the  amount  of 

dollars. 

And  plaintiff  says  that  by  reason  of  the  premises  an  action 
hath  accrued  to  . .  h .  .  to  have  and  demand  of  and  from  the 
said  defendants,  under  the  writing  obligatory  aforesaid  the 
damages  aforesaid,  and  that  by  reason  of  the  premises  the  said 

defendants  have  promised   to  pay  to    ,   the   said 

plaintiff,  the  damages  aforesaid,  whenever  thereunto  requested; 
but  the  plaintiff  says  that  although  often  requested  so  to  do, 
the  said'  defendants  have  neglected  and  refused  and  still  do  neg- 
lect and  refuse  to  pay  said  plaintiff  the  said  damages  so  sustained 
by  ..h..  as  aforesaid,  to  the  damage,  etc. 

10G4  Personal  injuries;  street  car  collision,  Narr.  (111.) 

For  that  whereas,  before  and  at  the  time  of  the  making  of 
their  promises  and  undertakings  hereinafter  next  mentioned, 
said  defendants  were  in  the  use,  control  and  management,  as 


492  ANNOTATED  FORMS  OP  PLEADING  AND  PRACTICE 

receivers  aforesaid,  of  divers  lines  of  street  railway  in  the  city 

of ,  county  of ,  and  state  of  Illinois, 

which  were  operated  prior  to  said  order  in  the  name  of  said 

,  and  by  it,  together  with  certain  cars,  machinery, 

powerhouses,  and  other  devices  and  instrumentalities  used  by 
them,  and  in  their  use,  control  and  management,  for  the  pur- 
pose of  operating  street  railways  in  the  city  of   , 

and  conducting  the  business  of  a  common  carrier  of  passengers 
for  hire,  and  in  that  regard  of  propelling  along  certain  tracks 

in  the  city  of ,  divers  cars  for  the  accommodation 

of  persons  and  for  the  purpose  of  carrying  persons  to  and  from 

divers  parts  of  the  city  of   ,  for  hire  and  reward 

to  the  said  defendants,  in  that  behalf  paid. 

And  the  plaintiff  avers  that  on,  to  wit,   ,  19.  ., 

in  consideration  that  the  said  pUuntiff,  at  the  special  instance 
and  request  of  the  said  defendants,  would  take  and  engage  a 
certain  street  car,  then  and  thereon,  to  wit,  the  said  day,  in  the 
use,  control  and  management  of  said  defendants,  under  said 

order  and  operated  by  them  in street  in  Illinois, 

to  be  carried  and  conveyed  in  said  street  car  by  said  defendants 
so  operating,  controlling  and  managing  the  same,  from,  to. wit, 

avenue,  a  certain  street  in  the  city  of , 

to,  to  wit,  another  certain  street  in  the  city  of  , 

known  as   avenue  at  and  for  certain  reasonable 

hire  and  reward,  to  wit,  the  sum  of  cents  to  be 

therefor  paid  by  the  said  plaintiff  to  the  said  defendants  in 
that  behalf,  they,  the  said  defendants,  then  and  there  undertook 
and  faithfully  promised  said  plaintiff  to  safely  carry  and  con- 
vey said  plaintiff  in  the  said  street  car  from,  to  wit, 

avenue  to,  to  wit, avenue  in  the  city  of , 

and  to  use  due  care  and  diligence  in  and  about  the  safe  carry- 
ing and  conveying  of  the  plaintiff,  as  aforesaid. 

And  the  plaintiff'  in  fact  says  that  she,  confiding  in  the  afore- 
said promise  and  undertaking  of  the  said  defendants  to  safely 
carry  her  in  said  car,  as  aforesaid,  did,  afterwards,  to  wit,  on 

the  same,  at,  to  wit, in  the  county  of , 

and  state  of  Illinois,  become  a  passenger  upon  said  certain  car 
then  and  there  in  the  use,  control  and  management  of  said 
defendants  under  said  order,  that  is  to  say,  a  certain  car  man- 
aged, controlled  and  then  and  there  propelled  by  them  on  a 

certain  line  of  street  railway  lying  in  said  street 

and  in  the  use,  possession  and  management  of  the  said  defend- 
ants under  said  order.  And  the  plaintiff  did,  so  confiding  in 
the  said  promise,  take  and  engage  transportation  in  the  said 
car  to  be  carried  and  conveyed  in  and  by  the  said  car  to  wit, 

avenue  to,  to  wit,   avenue  in  said 

street  in  the  city  of ,  and  did  then 

and  there  pay  to  the  said  defendants  the  sum  of cents ; 

the  same  being  the  hire  and  reward  requested  by  said  defend- 
ants for  the  carriage  of  the  plaintiff  upon  said  car  from  said, 


ASSUMPSIT  493 

to  wit, avenue  to,  to  wit, avenue  in 

tlie  city  of  

And  although  the  plaintiff  confiding  in  the  said  promise  and 
undertaking  of   the   said   defendants,   did   afterwards,   to   wit, 

on  the  day  and  year  aforesaid,  to  wit,  aforesaid, 

become  and  was  such  passenger  in  and  by  the  said  street  car, 

operated,  controlled,  and  managed  in  said ,  .  street, 

by  the  defendants,  to  be  carried  and  conveyed  in  and  by  the 

same   from   said    avenue   to   said    

avenue ;  yet,  the  said  defendants  not  regarding  their  said  prom- 
ise and  undertaking  so  by  them  made  in  manner  and  form  afore- 
said, did  not  nor  would  use  due  and  proper  care,  skill  and  dili- 
gence in  and  about  the  carrying  and  conveying  of  the 
said    plaintiff    in    and    by    the    said    street    car    from    said 

avenue  to  said    avenue ;  but  then 

and  there  wholly  neglected  and  refused  so  to  do,  and  on  the 
contrary  thereof  so  carelessly,  improperly,  negligently  and  un- 
skillfully  drove  and  managed  a  certain  other  street  car  then  and 
there  in  the  like  use,  control  and  management  of  the  said  defend- 
ants under  said  order  and  being  then  and  there  operated  by 
said  defendants  upon  said  line  of  street  railway  lying  then  and 

there  in street,  that  by  reason  thereof  said  street 

car  last  mentioned  collided  with  the  said  street  car  upon  which 
the  plaintiff  was  then  and  there   a   passenger,   near,   to  wit, 

street,  in  the  city  of  ,  county  and 

state  aforesaid,  and  on  the  day  and  year  aforesaid. 

By  and  through  the  carelessness,  negligence,  unskillfulness 
and  misconduct  of  the  said  defendants,  in  the  management  ot 
said  cars  ajid  in  thereby  causing  said  collision  as  aforesaid,  and 
while  the  plaintiff  was  then  and  there  in  the  exercise  of  due  care 
and  caution  for  her  own  safety,  and  was  then  and  there  in  the 
act  of  alighting  from  said  car,  and  in  that  behalf  was  in  the 
exercise  of  due  care  and  caution  for  her  own  safety,  the  plain- 
tiff was  thrown  from  the  said  car  upon  which  she  was  then 
and  there  a  passenger,  to  and  upon  the  ground  then  and  there, 
and  by  reason  thereof,  and  the  said  several  premises,  the  plain- 
tiff's left  humerus  and  lower  end  of  the  plaintiff's  left  radius 
were  fractured.  And  the  plaintiff  sustained  thereby  and  by 
reason  thereof  a  great  shock  and  was  then  and  there  in  other 
respects  and  thereby  greatly  hurt,  bruised,  and  was  sick,  sore, 
lame  and  disabled  in  consequence  of  said  several  premises,  and 
so  remained  and  continued  for  a  long  space  of  time,  to  wit, 
from  thence  hitherto.  During  all  of  which  time  she,  the  said 
plaintiff,  and  in  consequence  of  said  injuries,  suffered  and  under- 
w^ent  great  pain  and  was  hindered  and  prevented  from  perform- 
ing and  transacting  her  necessary  affairs  and  business,  by  her 
during  that  time  to  be  performed  and  transacted.  And  also 
thereby,  she  the  said  plaintiff,  was  forced  and  obliged  to,  and 
did,  necessarily  lay  out  and  expend  a  large  sum  of  money,  to 
wit,  the  sum  of dollars  in  and  about  endeavoring 


494  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

to  be  cured  of  the  said  fractures,  bruises,  wounds,  sickness,  sore- 
ness, lameness  and  disorders  aforesaid,  occasioned  as  aforesaid, 
at  the  place  aforesaid. 

And  the  plaintiff  avers  that  by  reason  of  the  injuries  sus- 
tained as  aforesaid  she  has  become  permanently  injurcil  and 
that  she  has  suffered  permanent  injury  in  the  use  of  her  left 
arm,  and  in  consequeni-e  of  the  said  injuries  has  sutfered  from 
an  attack  of  neurasthenia  and  has  become  and  is  permanently 
impaired  in  her  health  and  physical  well  being.  To  the  damage, 
etc. 

1065  Preference  by  bankrupt,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of , 

19.  .,  there  was  filed  in  the   court  of  the  United 

States  for  the   district  of    ,    

division,  a  petition  in  bankruptcy  against  the  said  K,  and  on, 

to  wit,  the    day  of    ,   19 .  . ,   it   was 

therein  adjudged  a  bankrupt,  and  on,  to  wit,  the 

day  of  ,  19..,  plaintiff  was  appointed  trustee  of 

the  estate  in  bankruptcy  of  the  said  bankrupt,  and  duly  (piali- 
fied  as  such,  and  is  still  acting  as  such. 

Further  this  plaintiff  avers  that  within  four  months  prior 
to  the  date  of  the  said  filing  of  said  petition,  and  upon,  to  wit, 
the  day  of ,  19 .  . ,  there  was  trans- 
ferred to  the  defendant  from  the  then  estate  of  the  said  bank- 
rupt sundry  items  of  assets,  to  wit,  shares  of  stock,  notes,  and 

choses  in  action,  to  the  amount  of,  to  wit, ($ )* 

dollars,  upon  pre-existing  indebtedness  then  due  to  the  said 
defendant  from  the  said  K;  that  at  the  time  of  said  transfer 
the  said  K  was  insolvent  and  unable  to  continue  its  business; 
that  at  and  throughout  the  time  of  the  making  of  said  transfer 
the  said  defendant  was  himself  president  and  director  of  said 
company ;  that  said  defendant  when  receiving  said  assets  had 
reasonaljle  cause  to  believe  and  did  believe  that  it  was  intended 
thereby  to  give  to  him,  the  defendant,  a  preference;  that  said 

K  then  owed  fully   dollars  to  sundry  and  divers 

of  its  creditors,  other  than  the  said  defendant,  no  part  of  which 
has  ever  been  paid;  and  that  by  the  fact  of  the  said  transfer 
the  said  defendant  was  enabled  to  obtain  a  greater  percentage 
of  his  said  debt  than  any  other  of  the  said  bankrupt's  then 
creditors  of  the  same  class  with  the  said  defendant. 

Further  this  plaintiff  says  that  upon,  to  wit,  the 

day  of    ,  and  within  a  year  of  the  date  of  the 

filing  of  the  said  petition,  this  plaintiff  notified  the  said  defend- 
ant of  this  plaintiff's  election  to  rescind  said  transfer,  and  did 
demand  from  the  said  defendant  the  return  of  the  said  assets, 
or  if  they  were  disposed  of,  then  the  return  of  their  proceeds; 
by  reason  of  which  premises  the  defendant  then  and  there 
undertook  and  promised  to  make  such  return,  etc.,  but,  although 


ASSUMPSIT  495 

often  requested,  has  failed  and  refused  so  to  do,  and  has  become 
indebted  to  this  plaintiff  in  the  sum  last  aforesaid :  and  for  this 
plaintiff  brings  suit,  etc. 

(Mississippi) 

For  that  whereas  on day  of ,  19  •  • , 

a  petition  in  bankruptcy  was  filed  in  the  Federal  court  at 
,  against  by  his  creditors,  petition- 
ing that  the  said   be,  by  said  court,  declared  a 

bankrupt,  and  that  on  the day  of , 

19 .  . ,  the  said   was  by  said  court  duly  declared 

a  bankrupt,  and  that  the  said  plaintiff  by  the  court  in  said 
bankruptcy  proceedings  was  duly  declared  a  trustee ;  that  there- 
after, in  due  time  and  form,  plaintiff  became  trustee,  qualify- 
ing as  such  and  giving  bond  as  is  required  in  such  matters. 

That  prior  to  such  bankruptcy  proceedings  and  within  four 

months  thereof  the  said   ,  being  indebted  to  said 

defendant  and  other  persons,  and  the  said ,  know- 
ing himself  to  be  insolvent,  turned  over   dollars 

in  cash,  then  belonging  to  himself,  to  said  defendant,  \yith  the 
intent  and  purpose  to  favor  said  defendant  and  to  give  said 
defendant  a  preference  over  said and  other  cred- 
itors of  the  same  class. 

That  at  the  time  of  the  delivery  of  said  cash  to  said  defend- 
ant by  said   the  said   and  the  said 

defendant  knew  of  the  insolvent  condition  of  the  said 

and  that  the  said  defendant  received  the  said  sum  of  money 
knowing  that  at  the  time  that  he  received  a  greater  per  cent 
of  his  indebtedness  than  would  be  received  by  any  other  cred- 
itor of  the  same  class  of  the  said   ,  and  that  the 

said  defendant  knew  at  the  time  of  such  delivery,  that  it  was 

intended  by  said    to  prefer  and  favor  the  said 

defendant  above  any  other  of  said  creditor  of  said 

That  by  the  payment  and  delivery  of  said  money  by  the 

said to  said  defendant  for  the  purpose  and  intent 

aforesaid,  an  action  has  accrued  to  the  plaintiff  for  said  amount. 

1066  Professional  services  rendered  in  another  state,  action 
A  physician  may  recover  for  medical  services  rendered  to  a 

patient  who  is  temporarily  in  another  state,  under  a  license  to 
practice  in  Illinois.i^<* 

1067  Profits,  Narr.  (lU.) 

For  that  whereas,  heretofore,  on,  to  wit,    day 

of    ,  19 .  . ,  the  defendant  entered  into  a  certain 

110  Ziegler  v.  Illinois  Trust  &  Sav- 
ings Bank,  245  111.  180,  198  (1910). 


496  ANNOTATED   FORMS   OP   PLEADING   AND   PRACTICE 

agreement  in  writing  for  a  good  and  valuable  consideration, 
to  wit,  the  assignment  of  all  tlie  plaintiff's  interests  in  a  cer- 
tain lease  of  the  premises  known  as  the   ,  in  the 

county   aforesaid,    dated    ,    19..,    for   a  term  of 

years,  at  a  gross  rental  of  ($ ) 

dollars,  whereby  he  agreed  that  the  plaintiff  should  have 

per  cent  of  the  net  profits  of  said  theatre  during  the  term  of 

years  after  the  date  of  said  lease,  to  be  accounted  and 

paid  over  at  the  end  of  each  and  every  theatrical  season,  to  wit, 
day  of ,  of  each  year ;  and  the  plain- 
tiff alleges  that  said  theatre  has  made  large  profits  since  the 
day  of ,  19 .  . ,  up  to  the  commence- 
ment of  this  suit;  and  that  estimating  upon  the  large  business 
done  and  profits  made  up  to  this  time,  the  plaintiff  would  be 

entitled  to  a  large  amount,  to  wit,  upwards  of   

($ )    dollars,  as  his  share  in  the  future  profits  of  said 

theatre  for  the  remaining  term  of  his  said  contract.  But  that 
the  defendant,  though  often  requested  heretofore,  has  refused 
and  at  present  does  refuse  wholly  to  account  for  or  to  pay 
over  any  of  the  profits  or  any  portion  of  plaintiff's  share  therein 
up  to  the  present  time,  or  to  recognize  any  rights  of  the  plain- 
tiff under  said  contract  to  any  of  the  future  profits  of  said 

business ;  to  the  damage  of  the  plaintiff  of dollars, 

and  therefore,  he  brings  this  suit,  etc. 

(Mississippi) 

For  that  whereas,  on  the day  of , 

19 . . ,  the  plaintiff  was  the  manager  and  director  of  a  theatrical 

troupe  known  as and  the  defendant  was  on  said 

date  one  of  the  owners  of  the house  in  the  city  of 

,    ,    and   on   the    date   aforesaid   the 

said  plaintiff  and  defendant  entered  into  a  contract,  whereby  the 
plaintiff  obligated  himself  to  furnish  (State  who  and  in  what 
play)  and  to  furnish  all  transportation,  express,  freight,  and 
baggage  charges  for  his  company,  and  advance  printing,  lith- 
ographs, etc. ;  and  the  defendant  obligated  himself  to  furnish 
said  house  well  lighted,  cleaned  and  heated,  with  all  the  requisite 
attaches  both  in  rear  and  before  the  curtain,  included,  etc., 
for  a  period  of  one  night  and  one  matinee  performance  com- 
mencing   ;  that  the  said  contract  further  provided, 

as  a  consideration  therefor,  that  the  plaintiff  was  to  receive  .... 
per  cent  of  the  gross  receipts  of  each  and  every  performance, 
and  the  remainder,  or  ....  per  cent,  the  defendant  was  to 
receive  as  his  share  of  the  earnings ;  all  of  which  agreement  will 
more  fully  appear  by  reference  to  a  copy  of  said  written  eon- 
tract  herewith  filed,  marked  exhibit  "A"  and  made  a  part  of 
this  declaration. 

That  pursuant  to  said  contract,  the  plaintiff  furnished  (State 
who  and  in  what  play)  at  said house  in  the  city 


ASSUMPSIT  497 

of  ,011  ,  in  perform- 
ance; that  he  in  all  things  kept  and  performed  said  contract 
on  his  part ;  but  he  alleges  that  the  defendant  failed  and  refused, 
and  still  fails  and  refuses,  to  keep  and  perform  the  same  on  his 
part,  as  hereinafter  stated. 

The  plaintiff  avers  that  the   per  cent  of  said  gross 

receipts  of  each  and  every  one  of  said  performance  due  him  by 

said  defendant  amounts  to dollars,  as  more  fully 

appears  by  a  sworn  supplemental  answer  of  the  defendant  or 
his  agent  as  manager,  herewith  filed  marked  exhibit  "B"  and 
made  a  part  hereof. 

That  by  means  whereof  the  said  defendant  then  and  there 
undertook  and  promised  to  pay  plaintiff,  or  his  order,  said  sum 
of dollars  whenever  he  should  be  thereunto  after- 
wards requested  so  to  do. 

Yet,  plaintiff  avers  that  though  requested,  the  said  defendant 
has  wholly  failed  and  refused  and  still  fails  and  refuses  to  pay 
him,  or  to  pay  to  his  said  order,  and  sum  of  money,  or  any  part 
thereof,  to  the  damage,  etc. 

1068  Promise  to  marry,  Narr.  (111.) 

For  that  whereas,  heretofore,  on  to  wit,  the day 

of ,  19 . . ,  at,  to  wit,  the  county  aforesaid,  in  con- 
sideration that  the  said  plaintiff,  being  then  and  there  unmar- 
ried, at  the  special  instance  and  request  of  the  said  defendant, 
had  then  and  there  undertaken  and  faithfully  promised  the 
said  defendant  to  marry  him,  the  said  defendant,  he,  the  said 
defendant,  undertook,  and  then  and  there  faithfully  promised 
the  said  plaintiff  to  marry  her,  the  said  plaintiff,  in  a  reason- 
able time  next  following ;  and  the  said  plaintiff  avers  that  she, 
confiding  in  the  said  last  mentioned  promise  and  undertaking 
of  the  said  defendant,  hath  always  hitherto  remained,  continued, 
and  still  is  sole  and  unmarried. 

And  plaintiff  avers  that  after  making  of  said  promise  and 
undertaking  to  marry  plaintiff'  as  aforesaid,  the  said  defendant, 
contriving  and  fraudulently  intending,  craftily  and  subtly  to 
deceive  and  injure  the  plaintiff,  and  to  wantonly  corrupt  her, 
the  plaintiff,  to  his  base  passions  and  licentious  use,  he,  the 

said  defendant,  on,  to  wit,  the day  of 

19 . . ,  at,  to  wit,  the  county  aforesaid,  did  wrongfully  and 
wickedly  seduce  her,  the  said  plaintiff,  and  have  sexual  inter- 
course with  said  plaintiff,  and  did  then  and  there  cause  her  to 
become  pregnant  with  child  by  him,  the  said  defendant.  And 
that  after  she  so  became  pregnant,  as  aforesaid  by  him,  the  said 
defendant,  she,  the  said  plaintiff,  still  confidently  relying  upon 
and  believing  in  the  promise  and  undertaking  of  the  said  defend- 
ant to  marry  her,  the  plaintiff  as  aforesaid,  solicited  and 
requested  him,  the  said  defendant,  to  forthwith  marry  her,  the 
said  plaintiff,  and  the  said  defendant,  still  further  contriving 


498  ANNOTATED    FORMS  OF   PLEADING   AND   PRACTICE 

to  deceive  her,  the  plaintiff,  told  plaintiff  that  if  she  would 

accompany  him  to  the  city  of ,  at,  to  wit,  the  county 

of ,  and  state  of ,  he,  the  said  defend- 
ant, would  then  and  there  marry  her;  and  still  relying  upon 
the  faithfulness  of  the  said  defendant,  said  plaintiff  did  then 

and  there,  on,  to  wit,  the   day  of   , 

19. .,  go  with  him,  the  said  defendant,  to ,  as  afore- 
said, and  then  and  there  said  plaintiff  requested  said  defend- 
ant to  marry  her,  the  said  plaintiff. 

And  plaintiff  avers  that  thereafter,  on,  to  wit,  the 

day  of ,  19.  .,  and  at  divers  times  since  that  time, 

at,  to  wit,  the  county  of  aforesaid,  she,  the  said 

plaintiff,  has  repeatedly  requested  said  defendant  to  marry 
her,  the  said  plaintiff,  as  aforesaid ;  yet,  the  said  defendant, 
further  contriving  and  fraudulently  and  craftily  intending  to 
deceive  and  injure  the  said  plaintiff*,  after  the  making  of  said 
promise  to  marry  her,  as  aforesaid,  did  designedly,  wrongfully 

and  injuriously,  on,  to  wit,  the day  of , 

19 .  . ,  at,  to  wit,  the  city  of   ,  in  the  county  of 

,  and  state  of ,  marry  a  certain  other 

person,  to  wit,  one    ,  contrary  to  his  promise  to 

marry  the  plaintiff  as  aforesaid. 

Wherefore,  the  said  plaintiff  saith  that  she  is  injured  and 

hath  sustained  damages  to  the  amount  of dollars. 

and  therefore  she  brings  suit,  etc. 

1069  Promissory  notes,  consideration 

A  promissorj^  note  given  without  consideration  and  received 
by  the  payee  under  an  agreement  never  to  call  upon  the  maker 
to  pay  it  is  invalid  and  unenforcible  in  the  hands  of  the 
payee. 


Ill 


1070  Promissory  notes,  negotiability 

A  promissory  note  is  negotiable  if  it  expresses  a  promise  by 
one  person  to  another  person  therein  named,  or  to  his  order,  to 
pay  a  fixed  sum  of  money  at  a  specified  time,  unconditionally, 
before  maturity.^^-  The  question  of  the  negotiability  of  a 
promissory  note  arises  only  before  maturity.  After  a  promis- 
sory note  is  due  its  negotiability  is  at  an  end.^^^ 

111  Straus  V.  Citizens  State  Bank,  "3  Stitzel  v.  Miller,  supra. 
254  111.   185,  187    (1912). 

112  Stitzel  V.   Miller,   250   111.    72, 
75    (1911). 


ASSUMPSIT  499 

1071  Promissory  notes;  parties,  plaintifiFs 

The  payee  alone  can  sue  on  a  promissory  note  which  has  not 
been  assigned. ^^^  In  ease  of  death  of  a  payee  an  action  upon 
the  note  should  be  brought  in  the  name  of  the  administrator 
or  personal  representative.^ ^^  The  purchaser  of  a  negotiable 
instrument  which  is  duly  endorsed  by  the  payee,  may  main- 
tain an  action  thereon  in  his  own  name.i^^ 

The  holder  of  a  negotiable  instrument  made  payable  and  en- 
dorsed to  a  fictitious  person  or  bearer  may  bring  suit  in  his  own 
name,  regardless  of  whether  the  maker  of  the  instrument  knew 
that  it  was  so  endorsed.^^^ 

1072  Promissory  notes ;  parties,  defendants 

All,  or  any  number,  of  the  parties  on  a  promissory  note  may 
be  sued,  under  the  Illinois  Negotiable  Instrument  act,  in  one 
action,  either  as  makers  or  eudorsers."^ 

1073  Promissory  notes ;  declaration,  requisites 

In  an  action  upon  a  promissory  note,  payable  at  a  specified 
place,  the  averment  of  a  demand  is  unnecessary.ii^  Nor  is  it 
necessary  to  allege  the  particular  consideration  for  which  the 
note  was  given,  although  the  consideration  is  mentioned  in  the 
note.  120  Tj^g  ^^^^  of  a  promissory  note  is  matter  of  essential 
description  and  must  be  precisely  alleged  and  proved.121  Sev- 
eral promissory  notes  constituting  similar  causes  of  action  may 
be  joined  in  one  count. ^  22 

1074  Promissory  notes ;  indorsee  v.  indorser,  Narr.  (111.) 

For  that  whereas  P,  on  the day  of ., 

IQ  at  i"  said  county,  made  his  certain  promis- 
sory'note  in*  writing,  bearincv  date  the  day  and  year  aforesaid 
whereby  he  then  and  there  promised  to  pay  to  the  order  of 
gaid  D   ($ )  dollars,   days  after  the 

114  NeTvman  v.  Eavcnseroft,  67  HI.  "9  Haunibal  &  St.  Joseph  E.  Co., 

496    497    (1873)  102    111.    249,    2.59    (1882);    Butter- 

lis  Newhall  v.  Turney,  14  111.  338,  field  v.  Kinzie,  1  Scam.  445  (1838). 

339    341  (1853).  120  Gaddy  v.  McCleave,  59  111.  182, 

iieStitzel  v.  Miller,  supra.  184  (1871). 

117  Keenan  v.  Blue,  240  111.   177,  121  Streeter  v.  Streeter,  43  111.  155, 
188   (1909).  158   (1867).                 ^     ,         ^           , 

118  First  National  Bank  v.  Miller,  122  Godfrey     v.      Buckmaster,      1 
235  111.  135,  137    (1908).  Scam.  447,  450   (1838). 


500  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

date  of  said  note,  at  avenue,  in  the  said  city  of 

,  with  interest  at   per  cent  ( % )   per 

annum,  for  value  received,  and  then  and  there  delivered  the 
said  promissory  note  to  the  said  defendant,  and  the  said  defend- 
ant, D,  then  and  there  endorsed  the  said  note  in  writing  and 
delivered  it  to  the  plaintiff;  and  the  plaintiff  avers  that  after- 
wards, to  wit,  on  the day  of ,  19 .  . , 

the  said  promissory  note  having  become  due  and  remaining 
wholly  unpaid,  the  said  plaintiff  instituted  a  suit  on  the  said 

note  against  the  said  P,  in  the court  of 

county,  in  the  state  of ,  to  the ,  19 .  . 

term  thereof.     And  afterwards  at  the  said  term 

of  said  court,  19.  .,  to  wit,  on  the day  of , 

19 .  . ,  the  said  plaintiff  recovered  a  judgment  in  said 

court  against  the  said  P  for  the  sum  of ($ ) 

dollars,  damages,  and ($ )  dollars,  costs  of 

said  suit. 

And  the  plaintiff  further  avers  that  afterwards,  to  wit,  on 

the   day  of   ,  19 . . ,  he  caused  to  be 

issued  in  the  office  of  the  clerk  of  said  court  of 

county  a  writ  of  fieri  facias  directed  to  the  sheriff 

of  said  county  of   ,  in  which  the  said  P  resided, 

commanding  him  that  of  the  lands  and  tenements,  goods  and 

chattels  of  said  P  he  cause  to  be  made  the  sum  of 

($ )  dollars  damages  aforesaid,  with  interest  thereon  from 

the  date  of  the  rendition  of  said  judgment,  and  also  the  costs 
aforesaid,   and  that  he  have  that  money  at  the   clerk's  of^ce 

aforesaid  in days  from  the  date  of  said  writ,  to  render 

to  the  plaintiff;  which  writ  was  afterwards,  to  wit,  on  the 
day  of ,  19 . . ,  delivered  to  the  sher- 
iff of  the  county  of ,  and  on  the day 

of ,  19 . . ,  the  said  sheriff  made  due  return  of  said 

writ  in  the  office  of  the  clerk  of  said  court  with  his  return 
thereon  endorsed  to  the  effect  that  he,  the  said  sheriff,  could 
find  no  property  wherewith  to  satisfy  the  said  writ,  or  any  part 
thereof,  and  therefore  returned  the  same  wholly  unsatisfied; 
as  by  the  records  and  proceedings  in  said  suit  in  said  court 
remaining  will  more  fully  appear.  And  the  said  plaintiff  avers 
that  he  used  due  diligence  by  the  institution  and  prosecution 
of  said  suit  against  the  said  P,  the  maker  of  said  note. 

By  means  whereof  and  by  force  of  the  statute  in  such  case 
made  and  provided,  the  said  defendant  became  liable  to  pay 
to  the  plaintiff  the  sum  of  money  in  said  note  specified ;  and 
being  so  liable,  in  consideration  thereof,  afterwards,  to  wit,  on 
the  day  and  year  last  aforesaid,  at  the  place  aforesaid  prom- 
ised the  plaintiff  to  pay  him  the  said  sum  of  money  in  the  said 
note  specified  when  thereunto  afterwards  requested. 

2.    And  w^hereas  also  P,  on  the day  of , 

19 .  . ,  at   ,  in  said  county,  made  his  certain  other 

promissory  note  in  writing  bearing  date  the  day  and  year  last 


ASSUMPSIT  501 

aforesaid,  whereby  he  then  and  there  promised  to  pay  to  the 

order  of  D,   ($ )   dollars,  at   

avenue,  with  interest  at per  cent  ( % )  per  annum, 

days  after  the  date  thereof,  for  value  received,  and 

then  and  there  delivered  the  said  promissory  note  to  the  said 
defendant,  and  the  said  defendant,  D,  then  and  there  endorsed 
the  said  note  in  writing  and  delivered  it  so  endorsed  to  the 
plaintiff ;  and  the  plaintiff  avers  that  when  said  promissory  note 
became  due  and  payable  the  said  P  had  become  and  was  wholly 
insolvent  and  unable  to  pay  the  amount  of  said  note,  or  any 
part  thereof,  and  hitherto  from  thence  has  continued  insolvent 
and  has  not  paid  the  amount  of  said  note,  or  any  part  thereof, 
to  the  plaintiff.  And  the  plaintiff  avers  that  it  is  and  has  been 
impossible  at  any  time  since  the  said  note  became  due  and  pay- 
able to  collect  the  same  or  any  part  thereof  by  legal  proceedings 
against  the  said  P,  and  that  any  such  legal  proceedings  at  any 
time  since  the  maturity  of  said  note  would  have  been  wholly 
unavailing. 

By  means  whereof  and  by  force  of  the  statute  in  such  case 
made  and  provided  the  said  defendant  became  liable  to  pay 
to  the  plaintiff  the  sum  of  money  in  said  note  specified,  and 
being  so  liable,  in  consideration  thereof,  afterwards,  to  wit, 
on  the  day  and  year  last  aforesaid,  at  the  place  aforesaid,  prom- 
ised the  plaintiff'  to  pay  him  the  said  sum  of  money  in  the  said 
note  specified  when  thereunto  afterwards  requested. 

Yet,  the  said  defendant,  not  regarding  his  said  promises  and 
undertakings,  but  contriving,  etc,  and  although  often  thereto 
requested,  has  not  paid  said  plaintiff  said  sums  of  money,  or 
any  part  thereof,  but  has  hitherto  wholly  refused  and  neglected 
so  to  do,  and  still  does  so  refuse  and  neglect,  to  the  damage  of 
said  plaintiff,  as  he  says,  of  dollars,  and  there- 
fore he  brings  his  suit,  etc. 

1075  Promissory  notes;  indorsee  v.  maker,  Narr.  (District  of 
Columbia) 

For  that  heretofore,  to  wit, made  their 

certain  promissory  note,  dated, now  overdue  and 

thereby  promised  to  pay  to  the  order  of  the  defendant  by  the 

name  of   dollars,    days  after  date,  value 

received  with  interest  at   per  cent  per  annum.     That 

said  payee  for  value,  before  the  maturity  of  said  promissory 
note  and  in  the  usual  course  of  business  endorsed  and  delivered 
the  same  to  the  plaintiffs.  That  said  note  was  duly  presented 
for  payment,  but  was  dishonored  and  protested ;  and  the  plain- 
tiff claims  the  sum  of dollars  with  interest  at  the 

rate  of per  cent  per  annum  from  the day 

of ,  and  costs  of  protest,  besides  costs  of  this  suit. 


502  ANNOTATED   FORMS   OF   PLEADING   AND    PRACTICE 

Affidavit 

(Venue) 

I, ,  being  first  duly  sworn  do  upon  oath  depose 

and  say  that  I  am  a  member  of  the  firm  of .  and 

copartners  trading  and  doing  business  under  the 

firm  name  and  style  of who  are  the  pereous  named 

as  plaintiffs  in  the  annexed  declaration,  which  is  hereby  referred 
to  and  made  a  part  of  this  affidavit.  That  said  copartners  trad- 
ing as  aforesaid,  have  a  cause  of  action  against   , 

wlio  is  named  as  defendant  in  said  annexed  declaration.  Thai 
said  cause  of  action  is  based  upon  a  certain  promissory  note. 

bearing  date  and  signed   and  pay 

able  to  the  order  of for  the  sum  of 

payable days  after  date,  at value  received, 

interest  at    That  before  maturity  said  promissory 

note  was  endorsed  by  the  payee ,  to  the  plaintiffs 

,  who  are  the  bona  fide  holders  for  value.     That 

at  maturity  of  said  note  the  same  was  presented  for  payment 
by  the  plaintiff's,  but  the  defendant  did  not  pay  the  same,  and 
said  note  was  dislionored  and  protested,  and  no  part  of  said 
note  has  been  paid.     And  that  there  is  justly  due  and  owing 

the  plaintiff's  from  said  defendant,  the  sum  of    

dollars  and  dollars  costs  of  protest  with  interest 

as  claimed  in  said  annexed  declaration,  exclusive  of  all  set  offs 
and  just  grounds  of  defense. 


Subscribed,  etc. 

(Florida) 

For  that  the  defendant  on  the day  of , 

19..,  by  his  certain  promissory  note  now  overdue  promised  to 

pay  to  the  order  of   ,   months  after  date, 

dollars  with  interest  at  the  rate  of   per 

cent  per  annum  from  date ;  and  said    ,  endorsed 

the  said  note  to  the  plaintiff;  and  that  the  defendant  has  not 
paid  the  same.    And  plaintiff  claims dollars. 

(Illinois) 

For   that   the    said    defendant   heretofore,    to   wit,    on   the 

day  of    ,   19 .  . ,  at  and  within  the 

county  and  state  aforesaid,  made  his  certain  note,  in  writing, 

of  that  date  thereby,  by  name  of   promising  to 

pay  to  the  order  of (by  the  name  of ) , 

at  the  office  of in  the  city  of ,  Illi- 
nois,  the  sum   of    dollars,    months  after 

date  thereof,  for  value  received.     And  the  said   , 

by  his  signature,  in  writing,  on.  the  back  of  said  note,  afterward, 


ASSUMPSIT  503 

on  the  same  day  (signed  )  ordered  and  assigned 

said  note  to  be  paid  to  the  plaintiff,  of  which  defendant  had 
notiee.^23 

Yet,  the  said  defendant,  his  promise  aforesaid  not  regarding, 
hath  not  paid  said  note,  nor  the  sum  of  money  therein  specified, 

either  at  the  office  of  the  said    in  the  city  of 

aforesaid,  nor  to  the  said  plaintiff,  although  the 

time  specified  in  said  note  for  the  payment  thereof  hath  long 
since  elapsed;  but  to  pay  the  same  or  any  part  thereof,  hath 
hitherto  refused,  and  still  doth  refuse,  to  the  damage,  etc. 

(Maryland) 

by his  attorneys,  sues , 

for  money  payable  by  the  defendants  to  the  plaintiff. 

And  for  that  the  said  defendants  on  the   day 

of ,  19 . . ,  by  their  promissory  note  now  over  due 

promised  to  pay  to ,  or  bearer,  $ , 

years  after  date,  and  that  the  said endorsed  the 

same  to  the  plaintiff,  as  follows :  ,  trading  as 

per   ,  and  the  said  note  was  duly 

presented  for  payment  and  was  dishonored,  whereof  the  defend- 
ants had  due  notice,  but  did  not  pay  the  same. 

And  the  plaintiff  claims  $ 

1076  Promissory  notes;  payee  v.  maker,  Narr.  (111.) 

For  that  whereas,  at to  wit,  at  the  county  afore- 
said, on  the  day  of ,  19 . . ,  the  said 

defendants  made  their  certain  promissory  notes, 

in  writing,  and  thereto  subscribed  their  proper  hand  writings, 
the  date  whereof  is  the  day  and  year  aforesaid,  by  one  of  which 
said  promissory  notes,  the  said  defendants  on  or  before   the 

day  of ,  then  next,  promised  to  pay 

to  the  order  of  ,   dollars,  for  value 

received,  with  interest  at  the  rate  of per  centum 

per  annum  after  due  and  payable.  By  another  of  said  promis- 
sory notes,  the  said  defendants  on  or  before  the  

day  of ,  then  next,  promised  to  pay  to  the  order 

of , dollars,  for  value  received  with 

interest  at  the  rate  of per  centum  per  annum,  from  the 

said day  of ,  19 .  . .     (Aver  similarly 

for  each  subsequent  note) 

123  A  declaration  on  an  assigned  plies   delivery,   notwithstanding  the 

promissory  note   must    aver   an    en-  fact    that    precedents    contain    such 

dorsement  upon  the  note.    Keeler  v.  an   averment.     Chester   &   Tamaroa 

Campbell,  24  111.  288   (1860).     The  Coal    &   E.    Co.,    72    ni.     521,     523 

averment  of  delivery  of  the  promis-  (1874).     The   declaration   need   not 

sory  note  is  immaterial  and  may  be  aver   that   the   note   is   held   by   the 

omitted  where  there  is  an  averment  plaintiff    for   the    use    of    another, 

that  the  payee  endorsed  the  note  to  Zimmerman    v.    Wead,    18    111.    304 

the  plaintiff,  as  an  endorsement  im-  (1857). 


504  ANNOTATED  FORMS  OP  PLEADING  AND  PRACTICE 

Nevertheless,  not  regarding  the  several  promises  and  under- 
takings aforesaid,  in  form  aforesaid  made,  and  not  regarding 
the  said  several  promissory  notes,  or  any  or  either  of  them,  or 
the  said  several  sums  of  money,  or  any  part  thereof,  so  due  and 

owing  to   the   said    ,   the  said   plaintiff,   the   said 

defendants,  or  any  or  either  of  them,  have  not  paid  or  any 
part  thereof,  although  the  same  to  pay,  they,  the  said  defend- 
ants, have  been  often  thereto  requested,  to  wit,  at  the  county 
aforesaid,  but  the  same  to  pay  have  hitherto  wholly  neglected 
and  refused,  and  still  do  refuse,  to  the  damage  of  the  said  plain- 
tiff    dollars;  therefore,  he  brings  suit,  etc.^-'* 

(Mississippi) 

For   that  heretofore,    to   wit,   on   the    day   of 

,  19 .  . ,  the  said was  indebted  to  said 

plaintiff  in  the  sum  of  dollars  and  for  the  pay- 
ment of  which  the  said   ,  defendant  in  this  suit 

did  execute  his  two  promissory  notes,  one  for  the  sum  of 

dollars  due  and  payable  on ,  and  the  other 

for  the  sum  of dollars  due  and  payable , 

each  of  said  notes  bearing  interest  at  the  rate  of   per 

cent  per  annum  from  maturity ;  true  copies  of  said  notes  being 
filed  herewith  and  made  a  part  of  this  declaration  and  marked 
exhibits  "A"  and  "B." 

That  both  of  said  notes  are  now  past  due  and  that  defendant 
has  been  often  requested  to  pay  the  same  as  he  has  therein 
promised  and  agreed  to  do,  but  that  he  has  not  complied  with 
his  said  promise  and  agreement  by  paying  same,  and  that  he 
has  wholly  made  default  therein,  and  that  he  has  thus  far 
failed  and  refused  to  pay  the  amount  due  on  said  notes,  or 
any  part   thereof,   to   the   damage   of  plaintiff'  in   the  sum  of 

dollars,    together   with    interest    at   the   rate    of 

....  per  cent  per  annum  from  the  maturity  of  said  notes. 
Wherefore,  plaintiff  brings  this  suit  and  demands  judgment 
against  defendant  in  the  sum  of  dollars,  prin- 
cipal and dollars  interest,  and  such  other  interest 

on  said  notes  as  may  accrue  during  the  pendency  of  suit,  and 
all  costs  of  suit. 

(West  Virginia) 

For  this,  to  Avit,  that  heretofore,  to  wit,  on  the day 

of ,  19. .,  at  the  county  aforesaid,  the  defendant 

made,  executed  and  delivered  to  plaintiff  his  certain  promissory 
note  in  writing, — a  copy  of  which  is  filed  herewith  marked 
exhibit  "A"  and  made  a  part  of  plaintiff's  declaration, — the 
date  whereof  is  the  same  day  and  year  aforesaid,  whereby  he 
promised  and  agreed,  for  value  received,  as  acknowledged  and 
set  out  on  the  face  of  said  note,  to  pay  to  plaintiff,  or  its  order, 

124  Godfrey     v.     Buckmaster,     1 
Seam.  447. 


ASSUMPSIT  505 

in    days  after  date    (which  period  had  elapsed 

before  the  commencement  of  this  action),  at  the  office  of 

in    ,  the  sum  of    dollars 

and  !...'. cents  ($ ),  with  interest  after  maturity 

until  paid,  with  the  further  provision  that  if  said  note  should 

be  paid  by  the  day  of of  the  year 

aforesaid,  there  should  be  allowed  thereon  a  discount  of 

per  cent.     And  plaintiff  avers  that  afterwards,  to  wit,  on  the 

\ day  of    ,  19 .  . ,  when,  according  to 

the  tenor  and  effect  thereof  and  according  to  the  custom  and 
usage  of  merchants,  the  said  note  became  due  and  payable,  the 
same  was  presented  for  payment,  but  that  the  same  was  not 
paid  to  plaintiff  or  any  one  for  it ;  and  that  although  said  note 
has  long  since  been  due  and  payable,  defendant  had  not  paid 
the  amount  of  same,  or  caused  the  amount  of  same  to  be  paid 
for  plaintiff  or  any  one  for  it. 

By  means  whereof,  and  by  reason  of  the  non-payment  of  the 

said    sum    of    dollars    and    cents 

($ ),  last  above  mentioned,  an  action  has  accrued  to  plain- 
tiff to  have  and  demand  of  and  from  defendant,  the  said  last 

mentioned  sum  of dollars  and cents 

($ ),  with  interest  thereon  from  the day  of 

,  19.  .,  until  payment.i-^ 

Yet,  etc. 

Affidavit 

(Venue) 

,  being  first  duly,  sworn,  says,  that  he  is  the 

treasurer  and  general  manager  of  the ,  a  corpora- 
tion created  and  organized  under  the  laws  of  the  state  of 

,  the  plaintiff  named  in  the  foregoing  action ;  and  that 

there  is,  as  he  verily  believes,  due  and  unpaid  from  the  defend- 
ant in  said  action  to  the  said  plaintiff  upon  the  demand  stated 
in  the  declaration  in  said  case,  including  principal  and  interest 
to  this  date,  after  deducting  all  payments,  credits  and  setoffs 
made  by  the  defendant,  and  to  which  he  is  in  any  wise  entitled, 
the  sum  of dollars  and cents  ($ ) 


Taken,  sworn  to  and  subscribed  before  me,  a  notary  public 

in  and  for county, ,  this 

day  of  ,19... 

f 

Notary  Public. 

1077  Purchase  money ;  sale  of  land,  action,  proof 

Assumpsit  will  lie  for  the  recovery  of  the  unpaid  purchase 
price  under  a  verbal  contract  for  the  sale  of  land  which  has  been 

125  Acme   Food   Co.   v.    Older,   64 
W.  Va.  255  (1908). 


506  ANNOTATED  FORMS  OF  PLEADING   AND   PRACTICE 

fully  performed  on  the  part  of  the  vendor  by  the  delivery  of 
a  deed  for  the  premises,  and  nothing  remains  to  be  done  but  to 
pay  the  money. ^^'*^  To  prove  performance,  or  an  offer  to  perform 
on  his  part,  in  an  action  for  the  purchase  price,  the  vendor  is 
not  bound  to  affirmatively  show  a  good  title,  but  he  may  rely 
on  his  tender  of  a  deed  without  producing  evidence  of  title. '-^ 

1078  Purchase  money;  sale  of  land,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,   on  the    

day  of ,  19 .  . ,  at  the  county  of and 

state   of    aforesaid,    said    plaintiff. .    made    and 

entered  into  a  certain  contract  and  agreement  to  and  with  the 
said  B,  the  defendant.,  in  this  cause,  in  and  by  which  said 
contract  and  agreement  the  said  A,  said  plaintiff  agreed  to  sell 
and  did  sell  to  the  said  B,  the  following  described  real  estate, 

to  wit:     (Set  out  legal  description)   of  the   

principal  meridian,  and  containing ( )  acres 

more  or  less,  situated  in  the  county  of ,  and  the 

state  of ;  and  in  and  by  the  said  contract  and 

agreement  the  said  A  further  agreed  to  and  with  the  said  de- 
fendant.., B,  that  ..he..,  the  said  plaintiff..,  would  convey 
and  warrant  unto  the  said  defendant.  .,  B  and  .  .h.  .  assigns, 
the  premises  above  described  by  a  good  and  sufficient  warranty 
deed  of  the  said  premises  on  the  demand  of  the  said  defend- 
ant. .,  B.  Said  plaintiff. .  further  agreed  to  and  with  the  said 
defendant. .,  B,  that  .  .he. .,  said  plaintiff,  would  pay  the  gen- 
eral taxes  assessed  and  levied  upon  the  said  premises  for  the 
year  19.  .  ;  and  that  .  .he.  .  would  furnish  to  and  for  the  said 
defendant.  .  a  complete  abstract  of  title  of  tlie  above  described 
premises,  with  a  continuation  thereof  brought  down  to  cover 

the  date  of  the  said  contract  and  agreement,  to  wit,  the 

day  of ,  19. .,  at  .  .h. .,  the  said  plaintiff. . '  expense. 

And  the  said  defendant. .,  B,  in  and  by  the  said  contract  and 
agreement  so  made  and  entered  into  by  and  between  the  said 
plaintiff. .  and  the  said  defendant. .,  agreed  to  and  with  the  said 
plaintiff.,  that  ..he..,  said  defendant..,  would  and  ..he., 
thereby  did  purchase  of  the  said  plaintiff. .  the  real  estate  and 
premises  above  described,  and  ..he.,  the  said  defendant.., 
therein  covenanted  and  agreed  to  pay  to  the  said  A,  for  the  said 

premises  above  described  the  sum  of dollars  upon 

the  delivery  to  .  .h. .,  the  said  B,  or  .  .h. ,  assigns,  goods  and 
sufficient  warranty  deed  conveying  to  the  said  B,  or  .  .h.  .  as- 
signs good  title  to  the  said  premises  above  described,  as  .  .he. ., 
the  said  B  should  demand.    And  the  said  A  agreed  to  and  with 

126  Knight  V.  Collins,  227  El.  348,  127  Dwi?Iit  v.  Cutler,  3  Mich.  566, 

353   (1907).  577    (1855). 


ASSUMPSIT  507 

the  said  B  that  .  .he. .  would  pay  to  the  said  A  the  said  sum  of 
dollars  for  the  said  premises  in  the   following 

manner,"  tliat  is  to  say :   dollars  in  cash  in  hand 

paid  at  the  signing  of  the  said  agi-eement,  and  the  sum  of 

dollars  in  cash  on  or  before  the    day  of 

19 .  . ,  together  with  interest  thereon  at  the  rate 

Qf   per  centum  per  annum  from  the  date  of  the  said 

contract,  to  wit,  the  day  of • .,  19.  •  ; 

and  the  said  B  further  agreed  to  and  with  the  said  plamtitt . . 
that  ..he.,  would  make  a  subdivision  of  the  premises  above 
described,  which  were  the  same  premises  so  sold  by  the  said 
plaintiff.  .  to  the  said  defendant.  .,  and  to  pay  all  expenses  for 
platting  the  same  and  for  recording  the  said  plat,  when  so  made, 

in  the  recorder's  office  of  county  in  the  state  of 

aforesaid ;  and  the  said  defendant .  .  further 
agreed  to  and  with  the  said  plaintiff.,  that  ..he..,  the  said 
defendant.,  would  hold  and  conduct  an  auction  sale  for  the 
choice  of  lots  in  the  said  subdivision  when  the  same  was  so  made 
as  aforesaid  of  the  said  above  described  premises,  and  that 
..he.,  said  defendant.,  would  pay  to  the  said  plaintiff.,  all 
money  derived  from  such  sale  of  and  for  the  choice  of  lots,  the 
said  money  so  paid  to  be  credited  upon  and  applied  by  the  said 
A  as  part  of  the  purchase  money  for  the  said  premises  above 
described,  each  lot  in  the  said  subdivision  as  made  to  be  entitled 

to  a  credit  of  the part  of  such  total  sum  so  derived 

from  the  sale  of  lots  therein ;  and  it  was  further  agreed  that  for 
the  balance  of  purchase  money  of  and  for  the  said  above  de- 
scribed premises,  to  wit,  the  sum  of dollars  not  paid 

in  cash  by  the  said  B  as  aforesaid,  the  said  defendant.  .,  would 
give  to  the  said  plaintiff.  .  notes,  the  payment  of  which  would 
be  secured  by  trust  deeds  or  mortgages  upon  the  said  lots  in  the 
said  subdivision  when  so  made  as  aforesaid  of  the  premises 
above  described,  given,  made  and  executed  by  the  purchasers 
of  the  lots  therein ;  the  said  notes  so  agreed  to  be  given  by  the 
said  defendant.  .  to  the  said  plaintiff.  .  were  to  be  proportioned 
upon  the  said  lots  in  the  said  subdivision  aforesaid  in  equal 
amounts  according  to  the  number  of  the  lots  therein,  and  the 
notes  on  each  lot  were  to  be  made  in  and  of  two  equal  amounts 
and  to  be  and  become  due  and  payable  on  or  before  two  years 

after  the  date  of  the  said  contract,  to  wit,  the 

day  of ,  19  •  • ,  said  notes  to  bear  interest  there- 
on at  the  rate  of per  centum  per  annum  after  the 

date  thereof,  pavable  annually;  and  the  said  defendant.,  fur- 
ther agreed  to  and  with  the  said  plaintiff.,  that  ..he..,  the 
said  defendant..,  would  make  and  acknowledge  or  pay  for 
the  making  and  acknowledgment  of  all  papers,  deeds,  trust 
deeds  and  mortgages  which  were  or  would  be  necessary  to  con- 
vey the  said  property  above  described  by  the  said  A,  to  the  said 
defendant.,  or  ..h..  assigns  as  ..he..,  said  defendant.., 
should  direct  and  to  secure  the  deferred  payments  thereon,  and 


508  ANNOTATED    FORMS   OP   PLEADING   AND    PRACTICE 

the  said  defendant. .  would  pay  all  recording  fees  for  the  filing 
of  record  any  and  all  trust  deeds  or  mortgages  that  the  said 
plaintiff.,  might  be  given,  by  the  said  defendant.,  as  part 
payment  of  the  purchase  money  for  the  premises  above  described. 
And  the  said  A,  the  plaintiff.  .  herein,  being  so  bound  and 
obligated  as  aforesaid  did  thereupon  furnish  to  the  said  B,  a 
^.omplete  abstract  of  title  brouglit  down  to  cover  the  date  of  tbe 
■said  agreement  as  is  tiierein  provided,  whieh  said  abstraet  of 
title  the  said  B  then  and  there  accepted,  and  upon  an  exami- 
nation thereof  by  the  said  defendant..,  the  said  defendant., 
then  and  there  approved  of  the  title  to  the  said  premises  and 
requested  the  said  phiintiff .  .  herein  to  convey  by  good  and  sufli- 
fjient  warranty  deed  or  deeds  tiie  said  premises  above  described 
to  ..h..  the  said  defendant.,  and  ..h,.  assigns  as  ..he., 
the  said  defendant.  .  then  and  there  directed  .  ,h. .,  said  plain- 
tiff..,  to  convey  the  same;  whereupon,  he,  tiie  said  A  and  his 
wife  joining  him,  made,  executed  and  delivered  to  the  said  de- 
fendant. .,  B  and  .  .h. .  assigns,  good  and  sufficient  warranty 
deeds  to  the  said  above  described  premises  as  .  .he. .,  the  said 
B  demanded,  in  and  by  whieh  said  warranty  deeds  .  .he.  .,  the 
said  A,  conveyed  to  tlie  said  B  and  .  .h.  .  assigns,  good  title  to 
the  said  above  described  premises,  and  .  .he,  .  tiie  said  A,  then 
and  there  paid  the  said  general  taxes  levied  and  assessed  upon 
the  said  premises  for  the  said  year  19. .,  and  .  .he. .  the  said 
plaintiff.  .  then  and  there  did  and  performed  all  of  the  terms 
and  conditions  of  the  said  contract  and  agreement  by  .  .h,  .,  the 
said  plaintiff.  .,  to  be  done  and  performed.  Yet,  well  knowing 
that  the  said  plaintiff.  ,  had  done  and  performed  all  of  the  con- 
ditions and  terms  of  the  said  contract  and  agreement  to  be  done 
and  performed  by  .  .h.  ,,  and  well  knowing  that  .  .he. .,  the  said 
plaintiff". .  had  furnished  to  .  .h, .,  the  said  defendant.  .,  a  com- 
plete abstract  of  title  to  the  said  premises  above  described,  with 
a  continuation  thereof  brought  down  to  cover  the  date  of  the 

said  agreement,  to  wit,  the day  of 

19,  ,,  and  that  the  said  plaintiff'.  .  at  the  reiiuest  and  demand 
of  the  said  defendant.  .  conveyed  by  good  and  sufficient  war- 
ranty deeds  good  title  to  the  said  premises  above  described  to 
the  said  B  or  .  .h. .  assigns,  all  of  w'hich  said  deeds  of  convey- 
ance so  made  and  executed  by  th.  .  plaintiff, .  were  accepted 
and  approved  of  by  the  said  defendant, .,  and  although  often 
requested  so  to  do,  said  defendant,,  ha.,  not  done  and  per- 
formed the  terms  and  conditions  of  the  said  agreement  to  be 
by  ,  ,h,  .  done  and  performed,  and  although  often  requested  so 
to  do,  ha, ,  not  paid  to  the  said  plaintiff, .  the  said  sum  of 
dollars  in  manner  and  form  as  ,  ,h, .,  the  said  de- 
fendant. ,  agreed  in  and  by  the  said  contract  to  pay  the  same, 
or  any  part  thereof,  nor  the  interest  thereon  or  any  part  there- 
of;  nor  ha. .  the  said  defendant.  .  paid  to  the  said  plaintiff.  , 

the  said  sum  of dollars  due  and  payable  on  or 

before  the day  of ,  19 . , ,  or  any  part 


ASSUMPSIT 


509 


thereof,  or  the  interest  thereon  at  the  rate  of  ..... .  per  centum 

per  annum  as  agreed  in  and  by  the  terms  and  the  conditions 
of  the  said  contract  or  any  part  thereof;  and  the  said  defend- 
ant..,  although  often  requested  ha.  .  not  paid  to  the  said  plain- 
tiff     the  said  sum  of  money  derived  from  the  sale  of  lots  m  the 
said 'subdivision  or  any  part  thereof,  or  the  interest  thereon,  or 
any  part  thereof;  and  the  said  defendant. .,  although  often  re- 
quested so  to  do,  ha. .  not  given  to  the  said  plaintiff      any  note 
or  notes,  the  payment  of  which  was  or  were  secured  by  trust 
deeds  or  mortgages  upon  the  said  lot  or  lots  in  the  said  subdi- 
vision so  made  by  the  said  defendant.  .,  to  secure  the  payment 
of  the  balance  of  the  said  purchase  of  and  for  the  above  de- 
scribed premises  not  paid  in  cash  or  money  by  the  said  defend- 
ant..   to  the  said  plaintiff..;  and  the  said  defendant..,  al- 
though often  requested  so  to  do,  ha.,   not  paid  to  the  said 
Dlaintiff      any  part  of  the  recording  fees  and  expenses  by  . .  U .  . 
incurred  in  and  about  the  said  sale  and  transfer  and  conveyance 
of  the  said  real  estate  and  premises  above  described  and  agreed 
to  be  paid  by  the  said  defendant. .  but  so  to  do  ha.  .totally 
neglected  and  refused  to  do,  to  the  damage  of  the  said  plain- 
tiff'  .  in  the  sum  of dollars,  and  therefore  .  .he. .  bring. . 

.  .h.  .  suit,  etc. 

1079    Reimbursement;  acconimodation  maker,  Narr.  (Md.) 

For  that  on    day  of ,  19. .,  the 

defendant  requested  the  plaintiffs  to  sign  his  promissory  note 
for  the  sum  of  dollars  as  accommodation  co- 
makers and  that  thov  acceded  to  his  reciuest  and  executed  with 
him  and  others  a  promissory  note  of  tiie  foUowing  tenor  and 
effect-      (Set   out   note);   and  afterward   said  note   upon   the 

decease  of  the  said  ^vas  by  •  •  ^  the  admin- 

Tstrator  of  the  said   ,  the  payee  of  the  said  note, 

duly  assigned  to  ,  now ,  ^bo  atter- 

wards,   to   wit,   on    day  ot    ••••;•'        :•' 

demanded  payment  of  said  note  upon  which  was  due  the  prin- 
cipal thereof  and  interest  thereon  from   ..... ...  •  •  •  •  5  ^  jj^ 

defendant  did  not  pay  the  same  or  any  part  thereof,  and  the 
plaintiffs  were  compelled  to  and  did  pay  said  sum  ot  ••••••;•••» 

to  the  said ,  who  thereupon  duly  assigned  to  them 

said  promissory  note  on  the •  day  of  . . .  ••••••  •  •  •' 

19  before  the  bringing  of  this  suit.  And  the  defendant  has 
not  paid  said  sum  of  money  or  any  part  thereof. 

1080  Reimbursement;  surety,  Narr.  (Md.) 

For  that  the  defendant  on day  of  . . . . .  •  •  -, 

19  by  his  promissorv  note,  in  which  the  plaintiffs  united  and 
signed  as  suretv  of  said  defendant,  now  overdue,  promised  to 
pay  to  the  order  of year  after  date 


510  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

dollars  with  interest   from  date   thereof,   which 

note  for  value  was  duly  assigned  to  the  order  of , 

but  that  said  note  and  interest  thereon  was  not  paid  by  tlie 
said  defendant,  or  any  part  thereof  (except  the  interest  thereon 

to  )  and  that  said  note  was  paid  by  plaintiffs  to 

the  said    and   the   said   note   was   endorsed   and 

assigned   by   said    to   said    plaintiffs,    before   the 

bringing  of  this  suit.     And  the  defendant  has  not  paid  said 
sum  of  money  or  any  part  thereof. 

1081  Rent;  assignee  of  lease,  action 

An  assignee  of  a  lease  is  liable  for  a  breach  of  an  express 
covenant  in  the  lease  which  runs  with  the  land  or  the  term,  such 
as  to  pay  rent,  during  the  continuance  of  the  privity  of  the 
estate  between  the  lessor  and  the  assignee  of  the  term.  An 
assignee  of  an  unexpired  term  is  not  liable  for  rent  of  the  en- 
tire unexpired  term,  unless  expressly  made  so  by  contract. 
The  mere  taking  of  an  assignment  of  the  lease  "subject  to  agree- 
ments," etc.,  in  the  lease  assigned  does  not  create  a  personal 
liability  upon  the  assignee  for  rents  accruing  after  a  second 
assignment  of  the  lease  by  the  first  leasee.^-^ 

1082  Rescision  of  contract,  action 

If  a  party  rescinds  a  contract,  he  cannot  sue  for  a  breach  of 
it,^-'-^  but  he  may  sue  in  assumpsit  to  recover  the  consideration 
paid  under  the  contract  and  interest,  if  the  contract  has  been 
rescinded  by  mutual  consent;  ^^'^  or  he  may  sue  to  recover  for 
work  performed  under  the  rescinded  contract.^^^  A  rescision 
of  a  contract  cannot  be  based  upon  the  opposite  party's  partial 
neglect  or  refusal  to  comply  with  the  tenns  of  the  contract,  but 
the  failure  must  be  entire  and  defeating  the  object  of  the  con- 
tract, or  rendering  it  unattainable.  For  a  partial  derelection 
and  non-compliance  in  matters  not  necessarily  of  first  import- 
ance to  the  accomplishment  of  the  object  of  a  contract,  the  in- 
jured party  must  seek  his  remedy  upon  the  stipulations  of  the 
contract  itself.^^a     Proceeding  with  the  performance  of  the  con- 

128  Consolidated  Coal  Co.  v.  i3i  Selby  v.  Hutchinson,  4  Gilm. 
Peers,  166  111.  361,  368   (1897).  319,  328  (1847). 

129  Hubbardston  Lumber  Co.  v.  i32  Selby  v.  Hutchinson,  4  Gilm. 
Bates,  31  Mich.  158,  169   (1875).  333. 

130  Smith  V.   Treat,   234   111.   552, 
557  (1908). 


ASSUMPSIT  511 

tract  after  default  made  by  the  opposite  party  is  a  waiver  of  the 
default  and  an  affirmance  of  the  continued  subsistence  of  the 
contract.^33 

1083  Rescision  of  contract ;  performance,  proof 

A  readiness  and  willingness  on  the  part  of  the  vendor  to  per- 
form are  sufficiently  shown  by  notice  to  the  vendee  of  such  readi- 
ness and  willingness  and  the  advertisement  of  the  goods  for  re- 
sale. It  is  not  necessary  that  shipment  to  the  place  of  delivery 
shall  be  continued  after  notice  of  rescision  from  the  vendee  and 
his  refusal  to  receive  any  more  of  the  goods.^^'* 

1084  Rescision  of  contract;  re-sale,  measure  of  damages 

Upon  the  vendee's  rescision  of  an  executory  contract,  whether 
the  articles  contracted  for  are  at  the  time  manufactured  or  are 
thereafter  to  be  produced,  and  a  re-sale  of  the  articles,  the 
measure  of  damages  is  the  difference  between  the  contract  price 
and  the  net  amount  realized  from  the  re-sale;  the  right  of  re- 
sale is  not  limited  to  the  place  of  delivery  of  the  articles,  but  it 
is  to  be  exercised,  in  good  faith  and  with  reasonable  diligence, 
with  a  view  of  realizing  the  largest  amount  obtainable  at  the 
re-sale.  136 

1085  Rescision  of  contract;  declaration,  requisites 

In  an  action  of  assumpsit  to  recover  for  work  performed  un- 
der a  rescinded  contract,  it  is  permissible  to  set  up  the  contract 
by  way  of  inducement,  provided  the  recision  of  the  contract  is 
plainly  alleged.  ^^^ 

1086  Royalties,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the    

day  of ,  in  the  year  ,  at  the  county  afore- 
said, the  plaintiff.  .  by  certain  agreement  in  writing,  a 

copy  of  which  is  tiled  herewith  and  made  a  part  hereof  marked 
exhibit  "A,"  then  and  there  leased  to  the  defendant.,  cer- 
tain machines  to  be  used  in  the  process  of  manufacturing 

,   to   wit,   certain    machines   known   as    ; 

certain  other  machines  known  as ;  a  certain  other 

machine  known  as    ,  all  of  which  said  machines 

were  then  and  there  the  property  of  the  plaintiff.  . . 

133  Selby  V.  Hutchinson,  supra.  Crescent    Coal    &    Mining    Co.,    254 

134  ^Vhite  Walnut  Coal  Co.  v.  Cres-       111.  372. 

cent  Coal  &  Mining  Co.,  254  111.  368,  lae  Selbj   v.   Hutchinson,   4   Gilm. 

377   (1912).  328. 

135  White    Walnut     Coal     Co.     v. 


512  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

And  the  plaintiff.  .  by  .  .h. .  said  written  agreement  did  then 

and  there  license  the  defendant.  .  and  .  .h.  .  operatives  in 

employed  at factory  in  the  city  of 

^  to  use  said  machines  upon  certain  terms  and  condi- 
tions in  said  agreement  in  writing  fully  set  forth,  and  the  defend- 
ant. .  upon  .  .h.  .  part,  in  consideration  of  such  leasing  by  the 
plaintiff.  .,    then   and    thereby    agreed,    amongst    otlier    things, 

that  .  .h.  .,  the  defendant.  .,  would  keep  an  account  of  all 

made  by  .  .h. .  or  by  any  other  person  for  .  .h. .  or  for 

others,  by  the  aid  of  the  machines  so  leased,  or  any  of  them,  or 
by  the  use  of  the  patents  by  which  said  machines  were  then  and 
there  protected,  or  any  of  them;  that   ..h..   would  render  an 

account  thereof  to  the  plaintiff.  .,   successors  or  assigns, 

on  or  before  the   day  of  each  month,  and  in  and 

by  said  account  to  specify  the  number  of  pairs  of 

made  under  said  lease  and  license  during  the  calendar  month 

next  preceding,   and   the  class  to   which  said    

belonged  in  accordance  with  the  schedule  of  rents  and  royalties 
in  the  said  agreement  in  writing  fully  and  at  large  set  forth ; 
that    ..h..    would  require  the  operator   or  operators  on  said 

machines  to  keep  a  daily  account  of  all made  on 

said  machines  upon  certain  printed  forms  to  be  furnished  by 
the  plaintiff.  .  in  duplicate,  one  copy  of  which,  containing  such 
reports  for  the  calendar  month  next  preceding,  to  be  sent  to 

the  plaintiff. .  on  or  before  the day  of  each  month ; 

and  that  said  defendant.  ,  agreed  to  pay  to  the  plaintiff.  .  as 
rent  for  the  machines  so  as  aforesaid  leased,  and  as  royalty  for 
the  use  of  the  patents  by  which  the  said  machines  were  so  pro- 
tected, the  rent  or  royalty  specified  in  a  certain  schedule  in 

said  agreement  at  large  set  forth,  on  each  pair  of 

of  the  respective  kinds  mentioned  and  described  in  said  sched- 
ule, made  by  the  aid  of  said  machines,  or  any  of  them,  or  by 
the  use  of  said  patents,  or  any  of  them;  the  rents  and  royalties 

for  all  of  such made  as  aforesaid  during  any  one 

calendar  month  to  be  due  and  payable  on  the day  of 

the  calendar  month  next  following  and  to  be  paid  within  one 
month  from  that  time. 

And  the  plaintiff. .  further  aver. .  that  there  was  a  provision 
incorporated  into,  and  made  a  part  of  said  contract,  in  and 
whereby  it  was  agi^eed  by  the  plaintiff.  .  that  if  the  rents  and 

royalties  due  as  aforesaid  on  the day  of  any  month 

should  be  paid  on  or  before  the day  of  that  month, 

,  the  plaintiff.  .  would,  in  consideration  thereof,  grant 

a  discount  of  per  cent  from  the  rents  and  royalties 

specified  in  the  schedule  aforesaid. 

And  the  plaintiff.,  aver.,   that  the  defendant.,  during  the 

month  of ,  in  the  year ,  did  manufacture, 

by  the  aid  of  the  machines  aforesaid,  so  as  aforesaid  leased  by 
the  plaintiff.  .  to  the  defendant.  .,  a  large  number  of , 


ASSUMPSIT  513 

to  wit,   ,  thereof,  and  did  in  due  course  render 

to  the  plaintiff .  . ,  an  account  specifying  the  number  of 

so  made  under  said  lease  and  license  during  the  calendar 

month  aforesaid,   to  wit,  the  month  of    ,  in  the 

year ,  and  of  the  class  to  which  said belonged 

according   to   the    schedule   aforesaid,    in   and   by   which   said 
accounting  so  rendered  it  appeared  that  of  the  number  of  ...... 

so  as  aforesaid  manufactured  during  said 

month  by  the  aid  of  said  machines  so  leased  as  aforesaid,  there 
were  (Describe  goods  manufactured)  for  which,  according  to 

the  terms  of  the  schedule  aforesaid  .  .h. .  w to  pay  to  the 

plaintiff.  .  the  sum  of per 

And  the  plaintiff.,  aver.,  that  by  the  terms  of  the  lease 
and  agreement  aforesaid  the  defendant.  .  then  and  thereby 
became  liable  to  pay  to  the  plaintiff.  .   as  royalty  for  the  use 

of  the  machines  aforesaid  for  the  said  month  of  in 

the  year  aforesaid  the  sum  of  dollars  and  which 

sum  was  payable  by  the  defendant .  .  on  the day 

of . ,  in  the  year  aforesaid,  with  the  privilege,  as 

aforesaid,  to  the  defendant  .  .of  paying  the  same  on  or  before 

the  day  of  ,  in  the  year  aforesaid, 

and  thereby  becoming  entitled  to  said  discount  of   

per  cent  upon  the  amount  of  said  indebtedness. 

And  the  plaintiff'.,  aver.,  that  afterward,  to  wit,  on  the 
day  and  year  last  aforesaid,  the  defendant..,  in  consideration 
of  .  .h. .  liability  aforesaid  then  and  there  promised  and  faith- 
fully undertook  to  pay  to  the  plaintiff. .  the  said  sum  of 

when    .  .  h .  .   should  be  afterward  thereunto  requested, 

but  the  defendant . .  did  not  on  or  before  the  said 

day  of  ,  in  the  year  aforesaid,  pay  the  said  sum 

of  money,  or  any  part  thereof  to  the  plaintiff.  .,  but  neglected  and 
refused  so  to  do  for  a  long  space  of  time  thereafter,  to  wit,  until 

the   day  of  ,  in  the  year  , 

at  and  upon  which  said  last  mentioned  date  the  defendant . . 

paid  to  the  plaintiff.  .  the  sum  of ,  and  no  more 

and  from  thence  hitherto  the  defendant . .  ha . .  at  all  times 
wholly  neglected  and  refused  and  still  neglect.,  and  refuse., 
to  pay  the  balance  of  said  sum  of  money  or  any  part  thereof, 
although  often  requested  so  to  do;  whereby  an  action  hath 
accrued  to  the  plaintiff.  .  to  recover  the  same.^^'^  (Add  con- 
solidated common  counts) 

1087  Sale ;  acceptance  of  goods,  liability 

In  the  absence  of  a  warranty,  the  purchaser  is  liable  for  the 

purchase  price  of  goods  which  he  does  not  return  within  a  rea- 

137  A   general   demnrrer  was  sus-  tract  which  was  made  a  part  of  the 

tained  to  the  declaration  solely  on  declaration  as  an  exhibit.    Goodyear 

the  ground  that  the  plaintiff  had  no  Shoe  Machinery  Co.  v.  Selz,  Schwab 

cause  of  action  under  the  particular  &  Co.,  157  111.  186   (1895). 
interpretation    of    the   license    con- 


514  ANNOTATED    FORMS   OF    PLEADING    AND    PUACTICE 

sonable  time  after  discovery  of  a  departure  from  the  terms  of 
the  contract,  or  if  he  accepts  the  goods  on  delivery. ^^^  The  ex- 
ercise of  acts  of  ownership  over  an  article  of  purchase  consti- 
tutes an  acceptance  of  the  article.^^^ 

1088  Sale;  partners  interest,  Narr.  (Mich.) 

For  that  whereas,  the  said  plaintiff  and  the  said  defendant 

and  one ,  of  the  city  of ,  were  for  many 

years  prior  to ,  li^-  •,  co-partners  under  the  firm  name 

and  style  of ,  conducting  the  business  of  jobbing  and 

selling  at  retail,  notions,  underwear,  hosiery  and  otlier  like 
articles.     And  whereas  for  several  years  previous  to  the  said 

day  of ,  19 .  . ,  the  said  plaintiff  had 

received  a  compensation  for  his  services  to  the  said  business 
and  as  profits,  large  sums  of  money,  annually,  to  wit,  in  the 
neighborhood  of  per  year.  And  whereas,  dis- 
agreements arose  between  the  said    on  the  one 

hand  and  the  said  plaintiff'  and  said on  the  other. 

Thereupon,  the  said  plaintiff'  and  the  said  for  a 

valuable  consideration  therein  set  forth,  entered  into  a  written 

contract  upon  the day  of ,  19  •  • ,  with 

the  said whereby  and  wherein  the  said  

agreed  to  purchase  and  said and  plaintiff  agreed 

to  sell,  the  interests  of  the  said antl  said  plaintiff 

in  said  business,  upon  certain  terms  and  conditions  in  said 
contract  contained,  a  true  copy  of  which  contract  hereinbefore 
referred  to,  is  hereto  annexed  and  marked  exhibit  "A,"  and 
made  a  part  of  this  declaration. 

And  plaintiff  avers  that  he  in  all  things  complied  with  the 
duties  and  obligations  resting  upon  him  under  the  terms  of  the 
said  contract  and  agreement ;  and  in  all  things  executed  the  obli- 
gations imposed  upon  him  by  said  contract  insofar  as  said  defend- 
ant would  permit  him  to  do  so ;  and  it  thereupon  became  and 
was  the  duty  of  the  defendant  under  said  contract  and  agree- 
ment hereinbefore  referred  to,  to  pay  to  the  said  plaintiff  the 
sums  of  money  due  to  the  said  plaintiff  under  said  contract  upon 
the    day  of    19 .  . ,  to  wit,   the  sum  of 

$ 

And  thereupon  the  said  defendant  afterwards,  and  to  wat, 

on  the  day  of ,  19 . . ,  in  consideration 

of  the  premises  respectively  then  and  there  promised  the  plain- 
tiff to  pay  to  him,  the  said  plaintiff,  the  said  several  sums  of 
money  so  due  to  the  said  plaintiff,  on  request;  yet,  etc. 

138  American      Theatre      Co.      v.  "9  Wolf  Co.   v.   Monarch   Eefrig- 

Siegel,  Cooper  &  Co.,  221  111.  145,  crating  Co.,  252  111.  491,  502  (1911). 
147  (1906). 


ASSUMPSIT  515 

1089  Sale;  purchase  price,  Narr.  (District  of  Columbia) 

That  heretofore   on   divers   days   before,    and 

,    the   plaintiffs,   sold   and  delivered   to   the  said 

,  at  the  latter 's  instance  and  request,  goods,  wares 

and  merchandise  to  the  value  of dollars.    That  the 

said  goods,  wares  and  merchandise  are  more  particularly  de- 
scribed in  the  annexed  particulars  of  demand,  to  which  refer- 
ence is  hereby   made.     That  said    promised  to 

pay  to  the  plaintiffs  for  said  goods,  wares,  and  merchandise,  the 

said  sum  of dollars.    And  that  the  said 

did  not  nor  did  anyone  for  him  pay  the  said  sum  or  any  part 
thereof,  and  the  said  defendant  as  executor  of  the  estate  declined 
to  pay  said  sum  or  any  part  thereof,  and  no  one  for  him  has  paid 
any  part  thereof.    Wherefore,  etc. 

(Illinois) 

For  that  whereas  on,  to  wit,  the day  of , 

19. .,  in ,  to  wit,  in  the  county  aforesaid,  in  con- 
sideration that  the  plaintiff  would  make  for  the  defendant  at 

his  request  a  large  quantity,  to  wit,   pictures,  at 

the  price,  to  wit,   ,  and  would  deliver  to  him  the 

said  pictures  at  a  certain  date  thereafter,  to  wit,  on  or  before 

,  he,  the  defendant,  promised  the  plaintiff  to  accept 

of  it  the  said  pictures  when  the  same  would  be  so  made  and  de- 
livered, and  to  pay  the  plaintiff  the  said  price  for  the  same,  as 

follows,  to  wit, promissory  notes  of 

each  for  the  sum  of   ,  payable  on   , 

each  endorsed  by  the  defendant  by  the  name  of , 

one  of  which  notes  was  to  be  given  at  the  time  of  making  of  said 
contract  and  the  other  on  the  delivery  of  the  pictures  as  afore- 
said; and  the  plaintiff  avers  that  it  did  afterwards  on,  to  wit, 

the   day  of   ,  then  and  there  make 

said  pictures  for  the  defendant,  and  then  and  there  was  ready 
and  willing  and  offered  to  deliver  the  same  to  the  defendant, 
and  did  deliver  the  same  to  the  defendant  and  requested  him 
to  accept  and  pay  for  the  same  as  aforesaid ;  yet,  the  defendant 
did  not,  nor  would  then  or  at  any  other  time,  pay  the  plaintiff 
therefor  the  price  aforesaid,  or  any  part  thereof,  or  deliver  to 

the  plaintiff  the  said  notes  of  the    ,  endorsed  by 

the  defendant  as  aforesaid,  but  refuses  so  to  do.  To  the  dam- 
age, etc. 

1090  Sale;  refusal  to  accept  cattle,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of , 

19 .  . ,  the  defendant  bargained  for  and  bought  of  the  plaintiff 
and  the  plaintiff  then  and  there  sold  to  the  defendant  at  his 
request  all  of  the  plaintiff's  steers,  from  three  years  old  and 


516  ANNOTATED   FOKMS   OF   PLEADING    AND    TKACTICE 

up  then  on  the  plaintiff's  range,  between  llic and 

tiie  ,  estimated  at  about iicail,  more 

or  less,  branded  and  marked   on  the  right  side, 

and  on  both  sides;  also  all  of  the  steers  from  three  years  old 

and  up,  to  be  delivered  to  the under  the-ir  contract 

with  the  plaintiff  known  as  the   brand ;  also  all 

of  the  steers  four  years  old  and  upwards,  to  be  delivered  by  the 

under  their  contract  with  the  plaintiff,  known  as 

the   brand,  said  steers  to  be  good,  merchantable 

cattle,  with  no  stags,  cripples,  or  big  jaws  among  them ;  also 
all  of  the  plaintiff*  s  dry  cows,  then  on  the  plaintiff's  said  range, 
and  all  dry  cows  to  be  delivered  to  the  plaintiff  under  contract 

between  the  plaintiff  and  the ,  and  the , 

all  of  said  cows  to  be  from  two  years  old  and  up,  branded  and 
marked  in  manner  as  the  said  steers;  the  total  number  of  dry 

cows  estimated  at  about head,  more  or  less ;  said 

steers  and  cows  to  be  delivered  by  the  plaintiff,  to  the  defendant 

between ,  and on  the  cars  at , 

in  the  state  of  ,  on  the   tracks,  the 

defendant  agreeing  to  pay  for  said  steers dollars 

per  head  and  for  said  cows dollars  per  head. 

And  the  plaintiff'  further  avers  that  in  pursuance  and  in  ac- 
cordance witii  said  contracts  and  at  the  place  aforesaid,  he  was 
ready  and  willing  and  tendered  and  offered  to  deliver  to  the 

defendant and steers,  and 

and dry  cows ;  which and 

steers  all  were  on  the day  of ,  either 

on    the    plaintiff"s   range    between    the and   the 

,  and  marked on  the  right  side,  and 

on  both  sides,  or  were  delivered  after  said  last  mentioned  date 

to  the  plaintiff  by  the under  their  contract  above 

referred  to  with  the  plaintiff',   and  marked  the    

brand   ,  said  steers  all  being  three  years  old  and 

upwards;  or  were  delivered  after  said  last  mentioned  date  to 

the  plaintiff  by  the under  their  contract  with  the 

plaintiff  above  referred  to,  said  steers  being  marked 

brand  and  being  years  old  and  upwards;  and  all 

of  the  steers  above  described  being  good,  merchantable  cattle, 
wdth  no  stags,  cripples  or  big  jaw^s  among  them;  and  the  said 

and    dry   cow^s   all  were   on   said 

,  19. .,  on  the  plaintiff's  range  above  described,  or 

were  after  said  date  delivered  to  the  plaintiff  under  the  con- 
tracts between  the  plaintiff  and  the and  the , 

referred  to  in  said  contract .  . ,  all  of  said  cows  being  two  years 
old  and  upwards  and  branded  and  marked  in  the  manner  as 
said  steers.     But  the  defendant,  contrary  to  his  said  contract, 

refused  to  accept  all  of  the  said and 

steers  and  and  dry  cows,  and  re- 
fused and  declined  to  receive  and  accept  thereof 


ASSUMPSIT  517 

I 

and of  said  steers  and and 

of  said  dry  cows,  and  to  pay  therefor  as  aforesaid. 

Whereby  the  plaintiff  has  been  deprived  of  divers  great  gains 
and  profits  which  otherwise  would  have  accrued  to  him  from  the 
delivery  of  said  cattle  as  aforesaid,  and  was  obliged  to  and  did 
re-sell  a  large  portion  of  said  cattle  at  a  great  loss,  and  suffered 
great  loss  by  reason  of  the  depreciation  in  the  market  price  of 
cattle  not  received  by  defendant  as  aforesaid,  and  was  put  to 
great  expense  and  loss  in  keeping,  feeding  and  caring  for  said 

cattle,  to  the  loss  of  plaintiff'  of,  to  wit,   dollars. 

(Add  common  counts) 

1091  Sale;  refusal  to  deliver  goods,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the day 

of ,  19. .,  at  the  city  of ,  county  of 

,  and  state  of ,  the  said  plaintiff,  at 

the  special  instance  and  request  of  the  said  defendant..,  bar- 
gained with  the  said  defendant.  .,  and  the  said  defendant.  .  then 
and  there  sold  to  the  said  plaintiff  a  large  quantity  of  goods,  to 
wit  (Describe  goods),  to  be  delivered  by  the  said  defendant.  . 
to  the  said  plaintiff  in  certain  specified  quantities,  as  follows, 

to  wit  (State  deliveries),  at  the  city  of ,  county  of 

,  and  state  of ,  and  to  be  paid  for  m 

cash, days  after  delivery  thereof,  or  at  a  discount 

of  .'. per  cent  allowed,  if  paid  in  cash  days 

after  the  date  of  said  delivery,  by  the  said  plaintiff  to  the  said 
defendant.,  at  the  rate  as  aforesaid;  and  in  consideration 
thereof,  and  that  the  said  plaintiff',  at  the  like  special  instance 
and  reciuest  of  the  said  defendant.  .  then  and  there  had  under- 
taken and  faithfully  promised  the  said  defendant.,  to  accept 
and  receive  the  said  goods  and  to  pay  them  for  the  same  at  the 
rate  or  price  aforesaid,  they,  the  said  defendant..,  undertook 
and  then  and  there  faithfully  promised  the  said  plaintiff'  to  de- 
liver the  said  goods  to  the  said  plaintiff  as  aforesaid ;  and  although 
the  said  time  for  the  delivery  of  said  goods  as  aforesaid  has 
long  since  elapsed,  and  the  said  plaintiff  hath  always  been  ready 
and  willing  to  accept  and  receive  the  said  goods  and  to  pay  for 
the  same,  at  the  rate  or  price  aforesaid,  to  wit,  at  the  city  of 

,  aforesaid,  whereof  the  said  defendant.  .   ha.  . 

always  had  notice;  yet,  the  said  defendant..,  not  regarding 
..h.'.  said  promises  and  undertakings,  but  contriving  and  in- 
tending to  deceive  and  defraud  the  said  plaintiff  in  this  behalf, 
did  nol,  nor  would,  within  the  time  aforesaid,  or  at  any  time 
afterwards,  deliver  the  said  goods,  or  any  part  thereof  for  the 
said  plaintiff  at  the  city  of  ,  aforesaid,  or  else- 
where, but  wholly  neglected  and  refused  so  to  do,  save  as  fol- 
lows, to  wit,  (Describe  goods).  ,         , 

And  the  said  plaintiff  further  avers  that  after  the  making 
of  the  said  bargain  and  contract  with  said  defendant. .    as 


518  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

aforesaid,  to  wit,  on,  etc.,  and  on  divers  other  days  and  times 
between  that  day  and  the  commencement  of  this  suit,  it,  the 
said  plaintiif,  confiding  in  said  promise  and  undcilaking  of 
the  said  defendant..,   expecting    ..h..    performance  thereof, 

to  wit,  at  the  city  of ,  and  county  of , 

and  state  of ,  aforesaid,  did  make  and  enter  into 

divers  bargains  and  agreements  with  divers  persons  for  the  sale 
to  them  respectively,  of  divers  (luantities  of  such  goods,  so  bar- 
gained for,  and  purchased  by  the  said  plaintiif,  as  aforesaid,  and 
for  the  want  of  said goods  which  the  said  defend- 
ant..  ought  to  have  delivered  to  said  plaintitf,  as  aforesaid,  it, 
the  said  plaintiff,  was  forced  anel  ol)lige(.l  to  ileliver  to  them,  the 
said   persons   respectively,    divers   (piantities   of   certain   other 

goods  which  said  plaintiff'  was  obliged  to  purchase 

in  open  market  and  at  a  much  higher  price  or  rate  than  that 
bargained  for  by  said  plaintiff  with  said  defendant..,  to  wit, 

at  the  price  of  $ more  than  the  price  or  value  of 

said goods,  which  said  defendant.  .  ought  to  have 

delivered  to  the  said  plaintiff*  as  aforesaid;  and  thereby  the  said 
plaintiff  has  sustained  great  loss,  to  wit,  a  loss  amounting  to  the 

sum  of ($ )   dollars,  to  wit,  at  the  city  of 

,  county  of ,  and  state  of  Illinois,  afore- 
said.    (xVdd  common  counts) 

1092  Sale;  refusal  to  deliver  leaf  lard,  Narr.  (111.) 

For  that  whereas,  on  the day  of , 

. . . .,  at  the  city  of ,  to  wit,  at  the  county  aforesaid, 

the  plaintiff..,  at  the  request  of  the  defendant..,  bargained 

with  the  defendant.  .  to  buy  of ,  and  the  defendant.  . 

then  and  there  agreed  to  sell  to  the  plaintiff. .  a  large  quantity, 

to  wit, ( )  pounds  of  leaf  lard,  at  the  price 

of ( )  cents  for  each  pound  thereof. 

Delivery  of  said  lard  by  the  defendant.  .  to  the  plaintiff.  .  to 

commence ,  and  to  be  consummated , 

and  to  be  made  as  follows :  that  is, pounds  daily, 

when  the  hogs  cut  by  defendant .  .  should  enable 

to  deliver  that  quantity ;  but  if  on  any  day  or  number  of  days 

during  said   period   from    to    ,   the 

product    of    defendant .  .    should    fall    short    of    

pounds,  then  defendant.  .  should  have  the  privilege  of  deliver- 
ing enough  on  days  when   product  should  be  in 

excess  of pounds,  to  make  the  average  of  defend- 
ant . .   daily  delivery  pounds. 

Said  delivery  to  be  at,  to  wit,  at  the  county  aforesaid,  and 
said  lard  to  be  paid  for  by  the  plaintiff. .  to  the  defendant. ., 
daily  on  the  delivery  thereof  as  aforesaid. 

And  in  consideration  thereof,  and  that  the  plaintiff. .   had 

promised  the  defendant.,    at    request  to  accept  and 

receive  the  said  lard,  and  to  pay  defendant.  .  for  the  same  at 


ASSUMPSIT  519 

the  price  aforesaid  daily  on  delivery, ,  the  defend- 
ant. .,  on  the  day  first  aforesaid,  at  the  county  aforesaid,  prom- 
ised the  plain'aff.  .  to  deliver  the  said  lard  to  .  .h.  .  as  aforesaid, 
and  plaintiff.,    aver.,    that  defendant.,   w. .   able  to  deliver, 

daily,  during  the  period  mentioned  from to 

pounds  of  leaf  lard.  And  although  said  time  for  the  delivery 
of  said  lard  has  long  since  elapsed,  and  the  plaintiff*. .  w. .,  dur- 
ing the  period  aforesaid,  from  to   , 

alwa3's  ready  and  willing  to  accept  and  receive  the  said  lard, 
and  to  pay  for  the  same  at  the  price  aforesaid,  to  wit,  at  the 
county  aforesaid ;  j'et  the  defendant.  .  did  not,  nor  would,  wdthin 
the  time  aforesaid  or  afterwards  deliver  the  said  lard,  or  any 
part  thereof  to  the  plaintiff. .  at  the  county  aforesaid,  or  else- 
where, but  refused  so  to  do.  Whereby,  the  plaintiff. .  ha. . 
been  deprived  of  divers  great  gains  and  profits  which  otherwise 
would  have  accrued  to  .  .h. ,  from  the  delivery  of  said  lard  to 
..h..,  as  aforesaid,  and  thereby  the  said  plaintiff'.,  h.  .  sus- 
tained great  loss,  to  wit,  a  loss  amounting  to  the  sum  of 

($ )  dollars,  to  wit,  at  the  city  of ,  county  of 

,  and  state  aforesaid. 

1093  School  district  discontinued,  action 

The  legal  discontinuance  of  a  school  district  puts  an  end  to 
an  executory  contract  with  it  for  the  purpose  of  performance 
and  entitles  the  other  party  to  bring  an  action  for  the  profits 
that  w^ould  have  been  realized  had  the  contract  been 
completed.^*® 

1094  Shipment;  delay,  Narr.  (Miss.) 

That  at  divers  times  between  the day  of , 

19 .  . ,  and  the day  of ,  19 .  . ,  the  said 

defendants  then  and  now  being  partners  engaged  in  business  of 
common  carriers  of  freight,  the  plaintiffs  had  delivered  to  said 
defendants,  at  their  station  within  this  state, car- 
load   lots    of    lumber,    to    be    transported    and    delivered    to 

plaintiffs  at  their station  within  said  state,  and 

that  the  said  defendants  promised  to  plaintiffs  to  so  transport 

and  deliver  the  said carload  lots  of  lumber  within 

a  reasonable  time  after  the  delivery  thereof  to  them  in  each  case, 
in  consideration  of  their  usual,  customary  and  legal  tariff  charges 
w^hich  the  plaintiffs  on  their  part  promised  to  pay  at  the  date 
of  said  delivery  to  the  defendants,  the  initials  and  car  num- 
bers, the  point  from  which  shipped,  the  date  of  re-delivery  to 
the  plaintiffs,  the  reasonable  time  required  for  transportation, 

140  Cbalstran  v.  Board  of  Educa- 
tion, 244  lU.  470,  476   (1910). 


520  ANNOTATED   FORMS  OF  PLEADING  AND   PRACTICE 

tlie  number  of  days  in  transit  and  the  number  of  days  reason- 
ably detained,  with  reference  to  each  of  said ears, 

being  specifically  shown  and  set  forth  by  exhibit  "A"  to  plain- 
tiff's declaration,  which  is  matle  a  part  hereof;  but  that  the  de- 
fendants, notwithstanding  their  promise  aforesaid,  and  not- 
withstanding that  the  plaintiffs  paid  their  tariff  charges,  as 
promised  by  them  that  they  would  do,  have  wholly  failed  to 
re-deliver  each  of  said carload  lots  of  lumber  to  plain- 
tiffs at  their station  within  a  rt'asonable  time,  and  for 

the  length  of  time  by  said  exhibit  each  shown  to  have  been  un- 
reasonably detained;  that  each  of  said  cars  was  so  unreasonably 
detained  and  delayed  by  the  negligence  of  the  defendants 
switching  the  same  to  sidetracks  and  there  leaving  it  between 
the  point  of  origination  and  the  point  of  destination;  and  that 
the  said  defendants  j)romised  the  plaintiffs,  as  required  by  rule 

of  the  Demurrage  and  Delayage  Rules  of  the  ;\Iissis- 

sippi  Railroad  Commission,  adopted  on and  effective 

that  they  v/ould  pay  to  them dollars  pcv  ear  per 

day  on  each  of  said  cars  so  detained;  but  that  though  often  re- 
quested so  to  do,  the  said  defendants  had  hitherto  wholly  failed 
and  refused  to  pay  to  the  plaintiffs  the  said  sums  so  promised  to 
them,  to  their  damage  in  the  siun  of dollars.  Where- 
fore, etc.^"*^ 

1095  Shipment;  non-delivery,  action 

An  action  of  assumpsit  will  lie  against  a  railroad  company  to 
recover  the  value  of  goods  which  it  has  failed  to  deliver.^"*-  In 
an  action  of  assumpsit  against  a  common  carrier  for  the  value 
of  lost  merchandise,  the  measure  of  damages  is  the  nuirket  value 
of  the  merchandise  at  the  place  of  its  delivery. ^^-"^ 

1096  Shipment;  non-delivery,  Narr.  (111.) 

For  tliat  whereas,  before  and  at  the  time  of  the  making  of 
promises  hereinafter  next  mentioned,  the  defendant  was  a  com- 
mon carrier  of  goods  and  chattels  for  hire,  over  and  by  a  certain 

railroad,  and  being  such  carrier  aforesaid,  on  or  about  the 

day  of    ,   19 .  . ,  at    ,   in  the  state  of 

I,  at  the  request  of  the  defendant,  the  plaintiffs  caused 
to  be  delivered  to  said  defendant  certain  goods  and  chat- 
tels of  the  plaintiffs,  to  wit, pounds  of  bulk  pota- 
toes safely  and  securely  loaded  in  a  certain  railroad  freight  car 
then  and  tliere  furnished  to  the  plaintiffs  by  the  defendant,  said 
potatoes  being  then  and  there  of  the  value  of dol- 

141  Keystone  Lumber  Yard  v.  i^.-?  Plaff  v.  Pacific  Express  Co., 
Yazoo  &  Mississippi  Valley  E.  Co.,       231  111.  243,  248    (1911). 

53  So.   8    (Miss.   1910). 

142  Chicago    &    Northwestern    Ey. 
Co.  V.  Ames,  40  111.  249   (1866). 


ASSUMPSIT  ^21 


lars,  to  be  taken  cave  o£  and  sa£dy  earned  by  the  <le  endant^as 

'"'I'    m  sa'fd  in  tt  stale  of  I.  aforesaid,  to 

radroad,  from  said  .^..^^^..^.^.^.,     ^^     p_     ^^^  j,      ,    t 

Saee  to  safely  deliver  the  same  for  the  plamtifes 

^  And  aUhou-h  the  defendant  as  such  earner  as  aforesaid,  then 

5,.!.i.  ,»,  ..My  »"M  tt.  -"jTb.- .■„.■.)>: 

•"  "•' — !!::tsr;r..'.'.*  !,■,;.,;,,»; . : » «- 

were  wholly  lost  to  plaintiffs. 

.  .„d   for  .bat  ...ereas,  ^so.   on.  tbe   da,   .f.esaid    at 

ihat  thc'piaintiffs'had  then  and  there  eansed  to  be  df  »•"«/*» 

riM'T.^ "  --!';.:";:^ndTotbnt  ^stp; 

^nd"^ee:;-e',  •  Toaded  and  stored  iS  a  certain  railroad  freight  car 
«-'  -'  "-ifrptS.;  bctg  tffd  t  e  \f'"iue 

by  the  defend...       on^.^.^.^.^^.---^^^;.      ,„,  ,    ,he  last 

^      •  ". 1"     1         +^  ho  hv  it   delivered  for  the  plaintiffs,   tor 

""\'"uo  lb  d  f  .  dam  in  that  beralf.  it,  the  defLdant,  pron,- 
:  d  ;!e  plaimiRs  to  taUe  care  of  the  last  mentioned  goods  and 
ehatte.  and  safeiy  to  c.rry  n.e  same  f-  -^^^-^^^Vd  -'^  , 

^"'Imriitbough  the  defendant  then  received  the  last  named 
long  since  elapsed,  the  defendant  did  not  nor  would  withm  sueH 


522  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

reasonable  time  or  afterwards,  though  often  requested,  safely 

carry  the  last  mentioned  goods  and  chattels  from , 

aforesaid,  to ,  aforesaid,  or  at  tlic  last  named  place 

deliver  the  same  for  the  plaintiffs  to   ,  then  and 

there  agents  of  the  plaintiffs,  at  the    streets,  in 

said  ,  but  has  hitherto  wholly  neglected  so  to  do; 

whereby  the  last  named  goods  and  chattels  by  reason  of  the 
careless  and  negligent  behavior  of  the  defendant  in  this  behalf 
and  through  the  negligence  and  carelessness,  and  ile fault  of  the 
said  defendant  in  the  premises,  the  said  goods  and  chattels  were 
so  negligently  and  carelessly  and  unreasonably  delayed  by  the 
defendant,  that  (being  of  a  perishable  nature)  they  became  and 
were  by  reason  of  said  negligent  and  unreasonable  delay,  decayed 
and  spoiled,  and  afterwards,  to  wit,  on  the  day  and  year  afore- 
said,  at    ,   aforesaid,   became   and   were   and   are 

wholly  lost  to  the  plaintiffs. 

3.     And  whereas,  also,  heretofore,  to  wit,  on  the 

day  of ,  19 .  . ,  to  wit,  at ,  in  considera- 
tion that  the  said  defendant,  at  its  special  instance  and  reciuest, 
then  had  the  care  and  custody  of  divers  goods  and  chattels  of 
the  said  plaintiff's,  to  wit,  goods  and  chattels  of  like  number, 
quantity,  (pality,  description  and  value  as  those  in  said  first 
and  second  counts  mentioned,  it,  the  said  defendant,  undertook 
and  then  and  there  faithfully  promised  the  said  plaintiffs  to 
take  due  and  proper  care  thereof,  whilst  the  said  defendant  so 
had  the  care  and  custody  of  the  same ;  yet,  the  said  defendant, 
not  regarding  its  said  promise  and  undertaking,  but  contriving, 
intending  to  injure  and  defraud  the  said  plaintiffs  in  this  be- 
half, whilst  the  said  defendant  so  had  the  care  and  custody  of 
the  said  goods  and  chattels,  took  so  little  and  such  bad  and  im- 
proper care  thereof  that  the  same  afterwards,  to  wit,  on  the  day 

and  year  aforesaid,  at ,  aforesaid,  became  and  were 

greatly  damaged  and  injured  and  wholly  lost  to  the  said  plain- 
tiffs.    Wherefore,  etc. 

6 

For  that  whereas,  the  said  defendant  before  and  at  the  time 
of  the  making  of  its  promise  and  undertaking  hereinafter  next 
mentioned  was  a  common  carrier  of  goods  and  chattels  for  hire 

from  a  certain  place,  to  wit,  from ,  in  the  county 

and  state  aforesaid,  to  a  certain  other  place,  to  wit,  to . , 

in  the  state  of ,  to  wit,  at  the  county  aforesaid ; 

and  the  said  defendant  being  such  carrier  as  aforesaid,  the  said 

plaintiff,  heretofore,  to  wit,  on  the day  of 

,  at,  to  wit,   ,  in  the  county  aforesaid,  at  the 

special  instance  and  request  of  the  said  defendant,  caused  to 
be  delivered  to  the  said  defendant,  so  being  such  carrier  as  afore- 
said, at   ,  to  wit,  in  the  county  of   

aforesaid,  certain  goods  and  chattels,  to  wit,  one  carload  of 
merchandise  of  the  said  plaintiff,  of  great  value,  to  wit,  of  one 


ASSUMPSIT  523 

dollars,  to  be  taken  care  of  and  safely  and  securely 

carried  and  conveyed  by  the  said  defendant  as  such  carrier  as 

aforesaid  from  aforesaid  to  aforesaid,  and  there, 

to  wit  at aforesaid  to  be  safely  and  securely  de- 
livered by  the  said  defendant  to  the  said  plaintiff  or  to  his 
order-  and  in  consideration  thereof  and  of  certain  reward  to 
the  said  defendant  in  that  behalf  the  said  defendant,  being  such 
carrier  as  aforesaid,  there  and  then,  to  wit,  on  the  day  and  year 
aforesaid,  at,  to  wit,  in  the  county  aforesaid,  undertook  and 
faithfully  promised  the  said  plaintiff  to  take  care  of  the  said 
goods  and  chattels  and  safely  and  securely  to  carry  and  convey 
the  same  from  aforesaid,  to afore- 
said and  there,  to  wit,  at aforesaid  safely  and  se- 
curely to  deliver  the  same  to  the  said  plaintiff  or  to  his  order. 
And 'although  the  said  defendant  as  such  carrier  as  aforesaid 
then  and  there  had  received  the  said  goods  and  chattels  for  the 
purpose  aforesaid,  it  did  not  regard  its  said  duty  as  such  car- 
rier nor  its  said  promise  and  undertaking  so  made  as  aforesaid, 
and  contriving  and  fraudulently  intending,  craftily  and  subtlely 
to  deceive  and  injure  the  said  plaintiff  in  this  behalf,  has  not 
taken  care  of  the  said  goods  and  chattels  or  safely  or  securely 

carried  or  conveyed  the  same  from aforesaid  to 

aforesaid,  nor  has  there,  to  wit,  at 

aforesaid  safely  or  securely  delivered  the  same  to  the  said  plain- 
tiff or  to  his  order;  but,  on  the  contrary  thereof,  it,  the  said  de- 
fendant being  such  carrier  as  aforesaid,  so  carelessly  and  negli- 
gently behaved  and  conducted  itself  and  with  respect  to  the 
said  goods  and  chattels  aforesaid,  that  by  and  through  the  mere 
carelessness,  negligence  and  improper  conduct  of  the  said  de- 
fendant, and  its  servants  in  this  behalf,  the  said  goods  and  chat- 
tels, being  of  the  value  aforesaid,  afterwards,  to  wit,  on  the  day 

and  year  aforesaid,  at,   ,  to  wit,  in  the  county  of 

aforesaid,  became  and  were  wholly  lost  to   the 

said  plaintiff,  to  wit,  in  the  county  of aforesaid, 

to  the  damage,  etc. 

1097  Special  assessment,  action 

A  city  may  maintain  assumpsit  for  the  collection  of  a  special 
assessment  after  it  has  become  due.^^^ 

1098  Subscription  to  shares  of  capital  stock  ordered  paid  by 

decree,  Narr.  (111.) 
For  that  whereas,  the  plaintiff  is  a  corporation,  and  was  organ- 
ized in  the  year ,  under  and  by  virtue  of  a  law  of  the 

state  of  Illinois,  providing  for  the  establishment  of  telegraphs, 

144  (3220),  C.  L.  1897  (Mich.). 


524  ANNOTATED   FORMS  OP  PLEADING   AND   PRACTICE 

which  was  enacted  and  went  into  effect  in  the  year ,  and 

having  a  capital  stock  of    doUars,   divided  into 

shares  of  the  par  value  of dollai-s  each,  the  sub- 
scriptions and  payments  for  which  stock  by  its  subscribers  and 
stockholders  constituted,  and  constitute,  tlie  means  and  fund  for 
the  prosecution  of  the  plaintiffs  business  and  the  payment  of 
its  debts. 

And  the  plaintiff,  being  such  corporation  as  aforesaid,  the 
said  defendants  as  such  copartners  as  aforesaid  and  under  the 

said  name  and  style  of heretofore,  to  wit,  on  the 

day  of ,  19.  .,  at  the  county  afore- 
said, made  and  entered  into  an  agreement  in  writing  with  the 
plaintiff,  in  and  by  which  agreement  the  said  defendants  sub- 
scribed for,  and  agreed  to  and  with  the  phiintiff'  to  take 

shares  of  the  capital  stock  of  the  plaintiff,  and  to  pay  for  the 

same  in  the  manner  following,  that  is  to  say, per 

centum  of  the  par  value  thereof  at  the  time  of  making  said  agree- 
ment, and- the  balance  of  the  said  par  value  thereof,  to  wit,  of 

dollars,  upon  each  of  said  shares  so  subscribed 

for  and  agreed  to  be  taken  by  said  defendants  as  aforesaid,  from 
time  to  time,  as  the  directors  of  the  plaintiff  should  order.  And 
the  plaintiff'  further  avers,  that  it  was  in  and  by  said  agreement 
provided  that  no  one  of  the  several  orders,  so  to  be  made  in  pur- 
suance thereof  as  aforesaid  should  direct  or  call  for  the  payment 

of  any  sum  of  money  in  excess  of  the  sum  of upon 

each  and  every  of  the  said  shares  so  subscribed  and  agreed  to 
be  taken  as  aforesaid. 

And  the  defendants  thereby,  for  a  valuable  consideration, 
undertook  and  promised  to  pay  to  the  plaintiff,  for  each  and 
every  share  so  subscribed  for  by  the  defendants,  as  aforesaid, 

the  sum  of dollars  (except per  centum  of 

the  said  amount,  which  was  payable,  by  the  terms  of  said  agree- 
ment, at  the  time  of  the  making  of  the  same),  in  such  instal- 
ments and  at  such  times  as  said  defendants  might  be  lawfully 
called  upon  and  required  to  pay  the  same,  and  according  to  the 
legal  tenor  and  eft'ect  of  the  said  agreement. 

And  the  plaintiff  further  avers  that  the  said  defendants  have 

heretofore  paid  to  the  said  plaintiff  the  sum  of 

dollars  and cents,  upon  each  and  every  of  the  said 

shares  so  subscribed  for  and  agreed  to  be  taken  by  them  as  afore- 
said, or  a  total  sum  of  dollars  upon  all  of  said 

shares,  but  that  the  said  defendants  have  never  heretofore  paid 
to  the  plaintiff  any  other  or  further  sum  than  as  aforesaid  upon 
the  said  shares  or  either  of  them,  so  that  there  was  on  and  pre- 
vious to  the  day  of ,  19 . , ,  a  balance 

unpaid  upon  said  shares  of dollars  and  upon  each 

and  every  of  said  shares,  and  which  was  then  liable  to  be  called 
for  and  ordered  and  required  to  be  paid  under  and  by  virtue  of 
the  terms  of  said  agreement. 

And  plaintiff  further  avers  that  a  large  number  of  other  per- 


ASSUMPSIT  525 

sons  than  said  defendants  subscribed  for  and  agreed  to  take 
other  shares  of  said  capital  stock,  and  to  the  extent  and  amount, 
including  those  subscribed  for  and  agreed  to  be  taken  by  the 
defendants,  as  aforesaid,  of  all  the  shares  into  which  said  capi- 
tal stock  was  divided ;  that  the  several  agreements,  by  which  said 
other  persons  agreed  to  take  said  other  shares,  were  similar  in 
all  respects  to  the  said  agreement  of  the  defendants,  except  as 
to  the  name  of  the  subscriber,  his  residence,  date  of  his  subscrip- 
tion, ajid  number  of  such  shares  agi-eed  to  be  taken;  that  each 
and  all  of  the  said  subscriptions  and  agreements  were  entered 
into  and  made,  to  wit,  in  the  years ;  that  the  sev- 
eral persons,  including  said  defendants  who  so  subscribed  for 
and  agreed  to  take  the  shares  of  said  capital  stock,  as  aforesaid, 
thereby  became  stockholders  of  the  plaintitf,  and  subscribers  to 
its  capital  stock ;  that  they  number  more  than dif- 
ferent persons,  and  are  widely  scattered,  and  reside  in  more 

than different  states  and  territories  of  the  United 

States  of  America,  and  in  other  countries;  that  the  names  and 
residences  of  many  of  them  are  unknown  to  the  plaintiff. 

That  a  certain  suit  was  begun  on  or  about  the 

day  of ,  19. .,  in  the court  of 

county,  in  the  state  of  Illinois,  on  the  chancery  side  thereof, 
wherein  one and  certain  other  persons,  stockhold- 
ers of  the  plaintiff,  were  complainants  (and  which  suit  was  so 
commenced  on  behalf  of  said and  said  other  per- 
sons, and  all  others  similarly  situated),  and  also  wherein  the 
plaintiff  and  others  were  defendants,  and  in  which  suit  the  plain- 
tiff was  duly  summoned,  and  appeared  and  submitted  to  the 
jurisdiction  of  the  said  court ;  and  which  suit  has  been  ever  since 
its  commencement,  and  now  is,  pending  and  undetermined  in 
said  court;  that  certain  proceedings  were  afterwards  therein 

had;  that  the  said  court  did  therein,  on,  to  wit, 

the  day  of ,  19. .,  take  jurisdiction 

and  control  of  the  plaintiff  and  its  powers,  property  and  affairs, 
and  did  appoint  a  receiver  for  the  plaintiff,  and  conferred  upon 
him  all  the  powers  and  duties  usually  granted  and  imposed  upon 
receivers  in  such  cases;  and  which  order  of  appointment  has 
never  been  heretofore  revoked,  vacated,  annulled  nor  set  aside; 
and  the  plaintiff  avers  that  its  business,  powers,  and  duties,  and 
the  powers  and  duties  of  the  board  of  directors  of  the  plaintiff 
have  been  thereby  vested  in,  and  exercised,  managed  and  con- 
trolled, by  the  said  court  and  said  receiver,  at  all  times  hereto- 
fore and  from  the  time  of  said  appointment,  of  all  of  which 

the  said  defendants  had  notice ;  that  the  said   is 

the  receiver  of  the  plaintiff'  appointed  as  aforesaid,  and  has  been 
such  for  many  years  continuously  last  past,  and  as  such  receiver 
is  in  possession  of  and  entitled  to  receive  the  property  and  effects 
of  the  plaintiff. 

Plaintiff  further  avers,  that  previous  to  the day 

of ,  19. .,  it  had  become  and  was  justly  indebted 


526  ANNOTATED    FORMS  OP    PLEADING   AND   PRACTICE 

to  various  and  sundry  persons  in  a  large  amount,  to  wit,  in  the 

sum  of dollars,  and  which  indebtedness  has  never 

been  paid;  that  the  whole  of  said  indebtedness  accrued  aj^ainst 
said  plaintilf  subseciuent  to  the  making  and  entering  into  the 
said  contract  of  subscription  and  agreement  to  take  and  pay 
for  the  said  shares,  by  the  said  defendants;  that  on  the  said  last 
mentioned  date,  and  for  a  long  period  previous  thereto,  the  plain- 
tiff had  no  property,  real  or  personal,  with  which  to  pay  the 
said  indebtedness  or  any  part  thereof,  except  the  amounts  un- 
paid upon  the  shares  of  its  capital  stock,  subscribed  for  and 
agreed  to  be  taken  by  the  defendants  and  by  its  other  stockhold- 
ers and  subscribers  to  its  capital  stuck  as  aforesaid  ;  that  previous 
to  said  last  mentioned  date,  a  small  number  of  said  stockholders 

had  paid  to  the  plaintiff dollars  upon  each  of  the 

shares  of  said  capital  stock  subscribed  for  by  them  respectively, 
and  the  par  value  and  in  full  for  the  same;  that  the  balance  and 
remainder,  and  the  others  of  said  stockholders  and  subscribers, 
have  not  now,  and  had  not  previous  to  said  last  mentioned  date, 

nor  have  any  of  them  paid  more  than  the  sum  of 

dollars  upon  each  and  every  of  the  shares  of  said  capital  stock 
severally  subscribed  for,  or  held  by  them;  that  many  of  them 

have  never  paid  more  than  the  sum  of cents  upon 

each  and  every  of  such  shares  severally  subscribed  for  by  them ; 
that  there  was  on  said  last  mentioned  date,  a  balance  and  amount 
unpaid  upon  each  and  every  of  the  shares  of  said  capital  stock 
(excepting  those  which  have  been  paid  for  in  full  as  aforesaid), 
including  the  said  shares  subscribed  for  by  defendants  as  afore- 
said, of  not  less  than dollars,  and  which  the  said 

stockholders,  including  the  defendants,  were  on  said  last  men- 
tioned date  liable  to  be  severally  called  upon  and  ordered  to 
pay  according  to  the  terms  of  the  said  agreements  of  subscrip- 
tion;  that  it  therefore  became  and  was  necessary  that  the  said 
stockhoklers  and  each  of  them  (except  those  who  had  paid  in 
full)  and  including-  the  said  defendants,  should  severally  be 
ordered  to  contribute  and  pay  a  certain  portion  pro  rata,  of  the 
par  value  of  the  shares  of  said  capital  stock  subscril)ed  for  by 
them,  to  be  used  and  applied  in  payment  of  the  said  indebted- 
ness, and  the  expenses  of  said  receiver,  incurred  in  and  about 
the  affairs  of  the  plaintiff*. 

And  plaintiff  further  avers,  that  all  of  said  stockholders  of 
plaintiff  were  not  made  parties  to  said  suit  and  proceeding  in 

said   court  of   county,  and  that  it 

was  impracticable  to  make  them  such  parties ;  and  plaintiff  fur- 
ther avers,  that  certain  other  proceedings  were  therein  in  said 
suit  had;  that  the  said  court,  having  then  and  there  full  and 
competent  jurisdiction,  power  and  authority  in  the  premises,  did, 
on  said day  of ,  19 . . ,  make  and  ren- 
der therein  a  certain  decree,  and  did  in  and  by  said  decree,  find 
and  declare,  order  and  decree,  as  follows,  to  wit :  That  the  plain- 
tiff is  a  corporation  and  was  duly  organized  in  the  year , 


ASSUMPSIT  527 

under  and  by  virtue  of  a  law  of  the  state  of  Illinois,  providing 
for  the  establishment  of  telegraphs,  which  was  enacted  and  went 

into  effect  in  the  year ;  that  the  said  suit  was  commenced 

in  the  year ,  against  the  plaintiff  and  certain  other  per- 
sons, who  were  each  duly  served  with  process,  and  appeared  in 
said  suit  in  person  and  by  counsel,  and  that  said  suit  has  ever 
since  been  and  is  now  pending  and  undetermined  in  said  court ; 
that  a  receiver  was  appointed  in  said  suit  of  and  for  the  plain- 
tiff' and  its  property,  both  real  and  personal,  on  the 

day  of ,  upon  supplemental  bill  of  complaint  filed 

in  said  suit,  and  on  account  of  mismanagement  and  malfeasance 
of  the  then  officers  of  the  plaintiff  and  as  alleged  and  set  forth 
in  said  supplemental  bill,  and  as  well  by  consent  and  stipula- 
tion of  the  plaintiff  and  the  other  parties  to  said  suit;  that  said 
receivership  has  never  since  been  discontinued;  that  the  plain- 
tiff is  largely  indebted  and  to  the  extent  of  more  than 

dollars,  and  which  indebtedness  is  in  the  form  of  judgments  and 
decrees  rendered  against  the  plaintiff;  that  about  two-thirds  of 
said  indebtedness  accrued  against  the  plaintiff,  and  was  created 

previous  to  the day  of ,  and  on  account  of  the 

construction  of  its  telegraph  lines  and  other  property,  and  ma- 
terial furnished  and  labor  performed  and  money  advanced  in 
and  about  such  construction,  and  in  and  about  the  operation  of 
the  lines  of  plaintiff;  that  a  large  portion  of  this  two-thirds  of 
said  indebtedness  was  and  is  for  money  loaned  and  advanced 
to  the  plaintiff,  and  which  was  used  by  it  in  the  construction 
and  operation  of  its  telegraph  lines  and  other  property;  that 

said  court  had,  before  said day  of , 

by  reference  had  for  that  purpose  in  said  suit,  determined  and 
found  the  entire  indebtedness  of  the  plaintiff,  and  the  name  of 
each  creditor  of  the  plaintiff,  and  the  amount  due  each,  and  that 
the  same- then  appeared  by  the  records  in  said  suit;  that  each 
and  all  of  said  creditors  did,  under  the  orders  of  said  court  in 
said  suit,  make  proofs  before  said  court  of  their  several  claims, 
judgments  and  decrees  against  the  plaintiff,  and  did  thereby 
make  themselves  parties  to  said  suit;  that  all  the  property  of 
the  plaintiff  had  before  said  last  mentioned  date  been  sold  and 
disposed  of,  under  the  orders  of  said  court  in  said  suit,  subse- 
quent to  the  said  appointment  of  the  receiver  as  aforesaid,  and 
the  proceeds  therefrom  distributed  to  the  creditors  of  the  plain- 
tiff; that  on  said  last  mentioned  date  the  plaintiff  had  no  prop- 
erty, real  or  personal,  except  as  thereinafter  stated  in  said  de- 
cree, with  which  the  said  indebtedness  or  any  part  thereof  could 
be  paid ;  that  the  only  means  or  resources  that  the  plaintiff  had 
on  said  last  mentioned  date  for  the  payment  of  said  indebted- 
ness were  and  are  the  balances  and  amounts  remaining  unpaid 
and  due  from  its  stockholders  upon  their  several  subscriptions 
to  its  capital  stock,  and  the  amounts  unpaid  upon  the  capital 
stock  of  the  plaintiff ;  that  there  are  about stock- 
holders of  the  plaintiff,  who  are  widely  scattered  through  more 


528  ANNOTATED  FORMS  OP  PLEADING   AND   PRACTICE 

than different  stales  and  territories  of  the  United 

States,  and  in  other  places,  and  the  hirger  portion  of  vvlioui  live 
at  great  distances  from  the  place  of  holding  said  court,  and  from 

said  county  of  ,  while  the  residences  of  many  of 

them  are  entirely  unknown  to  said  receiver  or  his  solicitor,  al- 
though diligent  inquiry  had  been  made  by  them  in  reference 
thereto,  and  that  it  was  therefore  impracticable  that  all  of  the 
said  stockholders  should  be  made  parties  to  said  suit  and  \n-o- 
ceeding ;  that  the  said  subscriptions  to  the  shares  of  said  capital 

stock  were  made  principally  in  the  years   ;  that 

many  of  the  stockholders  of  the  plaintiff  have  become  insolvent 
or  have  died  since  their  subscriptions  were  made ;  that  a  few  of 
said  stockholders  have  paid  the  full  par  value  of  the  shares  of 
said  stock  subscribed  for  or  held  by  them,  namely,  the  sum  of 

dollars  on  each  and  every  share  thereof ;  that  some 

of  the  said  stockholders  have  paid per  cent  of  such  par 

value,  or dollars  on  each  share  subscribed  for  or 

held  by  them;  that  many  of  said  stockholders  have  paid  only 

cents  upon  each  share  subscribed  for  by  them ; 

that  all  of  said  stockholders  excepting  those  who  have  paid 
dollars  on  each  of  the  shares  of  said  stock  sub- 
scribed for  or  held  by  them  respectively,  now  owe  and  are  liable 
to  the  plaintiff"  for  an  unpaid  balance  upon  their  several  sub- 
scriptions to  such  stock  of  not  less  than doUai-s  on 

each  share,  or per  centum  of  the  par  value  thereof ;  and 

that  many  of  them  owe  thereon  much  more  than   per 

centum  of  the  par  value  thereof ;  that  the  liability  of  the  stock- 
holders to  said  company  is  based  upon  and  controlled  by  con- 
tracts of  subscriptions  made  with  said  company  and  in 
and  by  which  contracts  the  said  stockholders  agree  to 
take  the  number  of  shares  subscribed  for  by  them,  and  pay 

for  the  same  in  instalments,  as  follows :    per  centum 

of  the  par  value  thereof  at  the  time  of  the  making  of  their  re- 
spective subscription  therefor,  and  the  balance  of  said  par  value 
as  the  directors  of  the  plaintiff  from  time  to  time  should  order ; 
that  the  said  stockholders  who  have  not  paid  in  full,  as  afore- 
said, are  severally  liable  to  the  plaintiff  for  the  balances  now 
unpaid  upon  the  shares  of  such  stock  subscribed  for  or  held  by 
them,  being  the  difference  between  the  amounts  actually  paid 
thereon,  and  the  par  value  thereof ;  that  the  said  unpaid  balances 
still  remain  liable  to  be  called  for,  and  ordered,  and  required 
to  be  paid  by  the  said  subscribers,  stockholders,  and  their  as- 
signs; that  the  collection  of  whatever  sums  are  required  to  be 
paid  by  said  stockholders,  in  order  to  pay  the  said  indebtedness, 
is  likely  to  be  attended  with  great  difficulty,  labor  and  expense ; 

that  it  was,  therefore,  necessary  and  proper  that    per 

centum  of  the  par  value  of  each  share  of  the  capital  stock  sub- 
scribed for  and  agreed  to  be  taken  or  held  by  said  stockholders, 
and  not  paid  for  in  full,  should  be  called  for  and  required  to 
be  paid  by  them  and  their  assigns,  for  the  purpose  of  paying 


ASSUMPSIT  529 

said  indebtedness;  and  which  said  findings  and  declarations  by 
said  court  in  said  decree,  plaintiff  avers,  were  and  are  true. 

Plaintiff  further  avers  that  the  said  court  did,  for  the  pur- 
pose of  paying  the  said  indebtedness  of  the  plaintiff,  also,  in 
and  by  said  decree  order,  adjudge  and  decree  as  follows,  to  wit : 
that  a  call  or  assessment  be  made  upon  the  stock  and  stockhold- 
ers of  the  plaintiff   (excepting  those  who  have  paid  in  full),' 

their  legal  representatives  and  assigns,  of per  centum  of 

the  par  value  of  the  shares  of  said  stock  subscribed  for  or  held 

by  them,  being   dollars  and   cents 

on  each  and  every  share  thereof,  and  that  the  stockholders  of 
the  plaintiff,  and  each  and  every  one  of  them  (excepting  those 

who  have  paid  dollars  on  each  and  every  share 

subscribed  for  or  held  by  them),  and  their  legal  representatives 

and  assigns  pay  to  the  receiver  of  the  plaintiff,  the  said , 

the  several  amounts  so  called  for  and  assessed  and  required 

and  ordered  to  be  paid,  namely,    dollars  and 

cents  on  each  and  every  share  subscribed  for  or 

held  by  them  respectively;  and  that  the  same  be  paid  upon  the 
demand  of  said  receiver  or  his  agent,  and  that  the  said  receiver 
should  at  once  proceed  to  collect  tbe  sums  so  ordered  paid  by 
said  decree,  and  make  all  necessary  demands  for  such  payments, 
employ  such  assistance  and  counsel,  take  such  action  and  insti- 
tute such  suits  and  proceedings  in  the  name  of  the  plaintiff, 
and  in  such  jurisdictions  as  the  said  receiver  should  be  advised 
or  deem  expedient  or  proper,  and  for  the  purpose  of  enforcing 
the  payment  of  the  said  sums  ordered  paid  as  aforesaid;  which 
said  decree  was  fully  entered  of  record  in  said  suit  on  said 
day  of ;  of  all  of  which  the  said  de- 
fendants had  notice.  And  plaintiff  also  avers  that  said  defend- 
ants as  such  copartners  as  aforesaid  and  under  the  said  name 
and  style  and  on  and  before  the  said  last  mentioned  date,  be- 
came and  were  parties  to  said  chancery  cause  and  are  bound  by 
said  decree  so  made  and  entered  as  aforesaid. 

And  the  plaintiff  avers  that  thereupon,  and  from  the  time 
of  the  making  and  entering  of  the  said  decree  as  aforesaid,  and 
thereby,  the  said  defendants  as  such  co-partners  became  in- 
debted to  the  plaintiff,  and  were  liable  to  pay  to  the  plaintiff 

the  sum  of  dollars  and cents  upon 

each  and  every  of  the  said  shares  so  subscribed  for  by  them  as 

aforesaid,  to  wit,  the  sum  of dollars  and 

cents,  upon  and  according  to  the  demand  of  said 

as  receiver  of  the  plaintiff. 

And  the  plaintiff  further  avers  that  the  said , 

as  such  receiver,  and  in  pursuance  of  the  terms  of  said  decree, 

did,  on,  to  wit,  the day  of ,  19 .  . ,  at, 

to  wit,  the  county  aforesaid,  make  demand  upon  the  said  de- 
fendants as  such  copartners  as  aforesaid  and  under  the  said 
firm  name  and  style  that  they  pay  to  him  as  the  receiver  of 
the  plaintiff  the  said  sum  of  money  last  above  mentioned,  within 


530  ANNOTATED   FORMS  OF  PLEADING   AND   PRACTICE 

days  from  the  said  last  mentioned  day,  at  the 

ifficV of  him,' the  said ,  at  room  . . . .,  number  .    . . 

street,  in  the  city  of ,  in  said  county, 

and  also  did  at  the  same  time  give  notice  to  the  said  defendants 
of  the  making  and  entering  of  said  decree. 

And  the  plaintiff  avers,  tliat  althougli  often  requested,  the 
defendants  or  either  of  them  have  not  paid  tlie  said  sum  of 
money  or  any  part  thereof,  but  to  pay  the  same  liave  negk'cted 
and  refused,  and  still  refuse,  to  the  damage  of  the  plaintiff  in 
the  sum  of dollars. 

1099  Taxes,  Narr.  (District  of  Columbia) 

For  that  the  said  plaintiff,  by  its  proper  officers  and  agents, 
duly  valued  the  gross  earnings  of  the  said  defendant  in  the  sum 

of dollars  for  the  fiscal  year  ending , 

and  assessed  thereon  as  a  tax  against  the  said  defendant  the  sura 

of dollars  as  the  tax  for  the  year  ending , 

as  provided  by  the  Act  of  July  1,  19U2,  and  the  amendment 
thereto  of  April  28,  1904,  on  which  said  tax  there  has  accrued 

penalties  of   dollars  for  failure  to  pay  the  said 

tax  when  and  as  the  same  became  payable;  that  the  said  sum 

of    dollars  became  due  and  was  payable  before 

the  first  day  of  June, ,  but  the  same  was  not  paid  or  any 

part  thereof,  nor  have  the  said  penalties  or  any  part  thereof 
been  paid,  although  rotiuests  have  repeatedly  been  made  for  both 
of  the  said  tax  and  the  penalties  thereon.    Wherefore,  etc. 

Affidavit 

District  of  Columbia,  ss. : 

,  being  duly  sworn  says  that  he  is  the  collector 

of  VaxVsfor  the  District  of  Columbia;  that  by  reason  of  his  offi- 
cial position  as  such  tax  collector  he  knows  that  the  defendant 

herein, ,  was  duly  taxed  in  the  year ,  the 

sum  of dollars  for  the  fiscal  year  ending , 

the  same  being per  cent  of  its  gross  earnings  for  the 

preceding  fiscal  year  ending ,  assessed  at 

dollars ;  that  the  said  tax  was  not  paid  before  the  first  of  June, 

,  and  that  the  penalties  for  such  nonpayment  accrued 

thereon  amounting  to dollars;  that  said  tax  is  car- 
ried on  the  personal  tax  ledger  of  the  District  of  Columbia  m 
the  name  of  said  defendant ;  that  neither  said  tax  nor  penalties 
nor  any  part  of  either  has  been  paid ;  that  said  tax  and  penalties, 

amounting  to    dollars,   are  now  justly   due  and 

owing  to  the  said  District  of  Columbia  from  the  said  defendant, 
,  exclusive  of  all  set  offs  and  just  grounds  of  de- 
fense. 


Collector  of  taxes. 
Subscribed,  etc. 


ASSUMPSIT  531 

(Maryland) 

For  that  heretofore,  to  wit,  on  and  after  the day 

of  ,  19 . . ,  there  was  in  the  ownership  and  pos- 
session, or  custody,  of  said  defendant,  in  the  city  of , 

state  of , barrels  of  distilled  spirits,  upon 

which  there  was  duly  made  by  the  State  Tax  Commissioner  of 
Maryland,  an  assessment  of  $ per  barrel,  amount- 
ing in  the  aggregate  to  $ ,  for  purposes  of  state 

and  city  taxation,  for  the  year  19.  .,  upon  which  said  assess- 
ment as  aforesaid  there  was  lawfully  levied  by  the  mayor  and 

city  council  of ,  by  ordinance  No ,  approved 

,  19 . . ,  a  tax  of  $ per  $100  for  city 

purposes,  for  the  year  19 . . ,  said  tax  upon  said  total  assessment, 
including  interest  and  penalties  to  the  date  of  the  institution 

of  this  suit,  amounting  to  $ ,  which  said  amount 

is  now  due  and  payable  by  said  defendant  to  the  plaintiff,  and 
the  defendant,  though  often  re(iuested  so  to  do,  has  failed  and 
refused  to  pay  said  tax,  or  any  part  thereof,  and  still  fails  and 
refuses  so  to  do. 

I  hereby  authorize  the  institution  of  the  above  suit. 

]\Iayor. 

1100  Taxes  paid  under  protest,  action 

A  drain  tax  paid  under  protest  cannot  be  recovered  back 
under  section  4359,  Comp.  Laws,  on  the  ground  that  there  was 
no  proper  release  of  the  right  of  way  in  the  proceedings  to  ac- 
quire it.^^^ 

1101  Taxes  paid  under  protest,  Narr.  (Miss.) 

In  the  northern  suburbs  of of is 

situated  a  college,  or  institution  known  as college. 

The  land  upon  which  the  same  is  situated  is  a  part  of  (Describe 

property),  according  to  the  official  map  of  ,  and 

is  descril)ed  in  the  deed  from   to    , 

which  deed  is  of  record  in  the  office  of  the  chancery  clerk  at 
On  said  lands  are  certain  buildings  and  improve- 
ments, erected  exclusively  for  the  purpose  of  conducting  a  col- 
lege, and  not  adapted  for  any  other  purpose.  In  the  main  build- 
ing are  class  rooms,  recitation  rooms,  a  dining  hall,  a  chapel,  a 
dormitory  for  pupils  who  board  at  the  institution,  and  rooms 

i<5  Eanney  Refrig.  Co.  v.  Smith, 
157  Mich.  '302,  305  (1909).  See 
Section  1056. 


532  ANNOTATED    FORMS  OF   PLEADING    AND    PRACTICE 

for  the  teachers.  There  is  also  a  president's  liome  or  residence, 
in  which  there  is  a  reception  room,  an  office,  and  bed  rooms  for 
the  president  and  his  family.  The  institution  is  designed  and 
has  been  conducted  throughout  all  the  years  of  its  existence 
as  a  college,  or  a  boarding  school  for  young  ladies.  Throughout 
such  existence,  said  institution  has  had  a  president,  a  regular 
corps  of  instructors,  constituting  the  faculty,  plaintitf  being  now 
the  president  It  has  a  high  curriculum  and  grants  diplomas  in 
the  arts  and  sciences  and  various  branches  of  learning  taught 
therein. 

Said  college  was  established  and  successfully  conducted  for  a 

number  of  years  by   ,  who  died  some  years  ago. 

After  his  death  the  college  was  conducted  by  his  family  and 

representatives  until  the  year ,  when  negotiations  were 

had  with  plaintitf,  a  professional  educator,  who  then  resided  at 

,  looking  to  a  sale  of  the  property  to  him,  and 

a  continuation  of  sucii  college  under  his  direction.  These  nego- 
tiations resulted  in  the  purchase  of  the  property  by  plaintiff, 

who  later  removed  his  family  to and  took  charge 

of  and  continued  to  conduct  said  institution  of  learning.  Since 
he  has  had  charge  of  the  same  he  has  improved  the  property 
and  its  eciuipnient  with  a  competent  faculty,  and  hns  continued 
to  conduct  said  institution  for  tlie  education  of  youth  up  to  the 
present  time.  The  property,  since  plaintiff  has  ac(|uired  control 
thereof,  has  been  used  solely  and  exclusively  for  the  purpose  of 
such  institution  for  the  education  of  youth,  and  for  no  other 
purpose,  and  it  is  now  being  so  used.  Said  property  consists 
of  the  grounds  and  buildings  thereon  and  the  personal  effects 
situated  in  the  buildings  constituting  a  part  of  the  equipment 
of  said  college,  all  being  used  directly  and  exclusively  for  the 
education  of  youth  and  for  no  other  purpose. 

Under  the  opinion  of  the  attorney  general  of  this  state,  said 
property  has  been  held  to  be  exempt  from  taxation  and  has  not 
been  assessed  for  state  and  county  taxes.     But  at  the  end  of 

,  plaintiff  learned,  to  his  great  surprise,  that  the 

said  property  had  been  assessed  for  taxation  by  the  authorities 

of  said    Plaintiff  at  once  protested  against  the 

legality  of  this  assessment,  claiming  that  under  section  4251 
of  the  Code  of  1906,  the  said  property,  being  used  directly  and 
exclusively  for  the  education  of  youth,  was  exempt  and  could 
not  be  taxed  by  said  municipality.     But  the  ofiftcers  of  said 

municipality,  by ,  insisted  on  the  payment  of  such 

taxes  and  informed  plaintiff  that  unless  the  taxes  so  assessed 
were  paid,  said  property  would  be  subjected  to  sale  therefor. 

Thereupon,  on  the day  of ,  plaintiff 

paid  to  the city  tax  collector  of  said 

of  ,  the  taxes  on  said  property  demanded  by  the 

officials  of  said  municipality,  namely :  the  sum  of 

dollars,  and  received  from  said  tax  collector  the  tax  receipt  for 


ASSUMPSIT  533 

the  amount.    A  copy  of  said  tax  receipt  with  the  endorsements 
thereon  is  filed  as  exhibit  "A"  to  this  declaration. 

Plaintiff  shows  that  at  and  before  the  time  of  the  payment  of 
such  taxes,  he  earnestly  protested  against  the  payment  of  the 
same,  urging  that  under  the  facts  hereinbefore  stated  that  the 
property  was  exempt  and  not  liable  to  taxation.  But  that  the 
said  tax  collector  persisted  in  his  unlawful  purpose  and  stated 
that  he  would  subject  the  property  to  sale  if  the  taxes  were  not 
paid.  Being  thus  coerced,  to  avoid  the  evident  purpose  of  said 
tax  collector  to  subject  said  property  to  sale,  plaintiff  paid  the 
said  sum  of  money  to  the  said  tax  collector  under  protest,  and 
the  fact  that  the  same  was  paid  under  protest  was,  by  said  tax 
collector  endorsed  on  the  said  receipt.  Plaintiff  assumes  and 
therefore  charges  that  the  amount  so  collected  as  a  city  tax 
claimed  to  be  due  on  said  property  has  been  paid  into  the  city  . 
treasury  by  said  collector,  except,  however,  a  certain  part  thereof, 
retained  by  him  as  commissions.  Plaintiff  avers  that  said  amount 
was  wrongfully  and  unlawfully  collected  and  was  paid  under 
protest  as  above  set  forth.  He  shows  that  the  property  was 
exempt  from  taxation  and  that  the  said  tax  collector  was  with- 
out authority  to  collect  the  same,  and  that  the  payment  thereof 
into  the  said  treasury  was  wrongful  and  unlawful.  Plaintiff 
therefore,  asks  judgment  against  the  defendant  for  the  said  sum 
of dollars,  with  interest  and  costs. 

1102  Taxes  paid  under  void  sale,  action 

A  tax-buyer,  under  the  Illinois  statute  may,  in  an  action  of 
assumpsit  recover  back  from  the  owner  the  amount  of  his  bid 
and  any  taxes  he  has  paid  upon  the  land  purchased  to  protect 
the  purchase,  where  land  is  sold,  which  is  not  subject  to  taxa- 
tion, where  the  taxes  have  been  paid  prior  to  the  sale,  or 
where  the  taxes  for  which  the  sale  was  made  arose  from  double 
taxation,  where  the  real  estate  was  so  imperfectly  described  as 
to  render  the  sale  void  so  that  the  purchaser  obtained  nothing 
by  virture  of  his  purchase.^^*^ 

1103  Telegraph  service,  Narr.  (Miss.) 

That  the  plaintiff, ,  is  a  corporation  doing  busi- 
ness in  the  city,  district,  county  and  state  aforesaid  and  is  en- 
gaged in  the  transmitting  and  receipt  of  messages  to  and  from 
various  parts  of  the  United  States ;  that  theretofore,  to  wit,  from 

day  of  ,  19 .  . ,  to  the  

day  of ,19..,  inclusive,  at  the  special  instance  and 

146  Joliet  Stove  Works  v.  Kiep,  230 
m.  550,  557    (1907). 


534  ANNOTATED   FORMS  OF   PLEADING   AND   PR.VCTICE 

request  of  the  defendant,  plaintiff  transmitted  messages  to  va- 
rious parts  of  the  United  States,  and  received  mcssagts  directed 
to  the  defendant,  the  tolls  and  diaries  of  which  amount  hi  agge- 

gate  to  the  sum  of dollars,  which  said  sum  dctcnd- 

ant  promised  to  pay  when  requested  so  to  do  l>y  plaintitf;  and 
plaintiff  avers  that  defendant  has  not  paid  phiintitf  said  sum  of 
money,  or  any  part  thereof,  although  often  requested  to  do  so; 
wherehy  an  action  hath  accrued  to  said  plaintiff  to  have  of  said 
defendant  the  sum  of dollars. 

Affidavit 

(Venue)  ,      .        , 
personally   appeared  before    the   undersigned, 

notary  i)ui)lie  of ,  manager  of 

who,  after  being  bv  me  duly  sworn,  states  on  oath  that  the  al)0ve 

account  against    .* of   dollars  is  just, 

due  and  unpaid. 

Witness  mv  iiand  and  notarial  s.al  this day  ot 

•,  19-. 

1104  Tenants  in  common,  action 

A  co-tenant  may  be  sued  in  assumpsit  for  the  value  of  a  pro- 
portionate share  in  personal  property  held  by  him  in  common, 
by  treating  the  retention  of  the  property  as  a  conversion  by 
sale.i-17 

1105  Transportation;  failure  to  provide,  Narr.  (Miss.) 

That  plaintitf  operates  and  eomlucts  throughout  the  United 
States  an  itinerary  show;  that  it  owns  its  i)rivate  sleeper  and 

private  baggage  ear,  carrying   or  more  persons; 

that  it  applied  to  the  railroad  company,  defend- 
ant herein,  at   ,  to  be  transported  to  the  city  of 

,  on  its  itinerary,  giving  to  ,  assist- 
ant general  passenger  agent, a  list  of  the  engage- 
ments of  said  company,  plaintiff  herein,  for  the  month  of , 

;  whereupon,  the  said ,  acting  for  said  defend- 
ant and  having  full  authority  to  do  so,  agreed  on  behalf  of  said 

defendant  to  convey  the  said  cars  of  the  plaintitf  from 

to  the  various  points  in ,  at  which  places  plaintiff 

desired  to  exhibit  its  shows  in  accordance  with  the  schedule  fur- 
nished to  the  said  defendant's  general  passenger  agent;  that  a 
copy  of  said  agreement  is  hereto  attached  and  marked  exhibit 
"A,"  and  it  is  asked  to  be  considered  as  if  set  out  in  full  in 
words  and  figures ;  that  after  the  execution  of  said  agreement, 

147  Fiquet  v.  Allison,  12  ]\Iich. 
328,  332  (1864)  ;  Williams  v.  Rog- 
ers, 110  Mich.  418,  423   (1896). 


ASSUMPSIT  535 

the  defendant  inspected  the  plaintiff's  cars,  and  pronounced 
the  same  perfectly  satisfactory  to  its  operating  department,  and 
moved  the  plaintilf  with  comparative  safety  in  accordance  with 

its  agreement  with  plaintiff,  reaching- on  the  day 

of  ,  19.. 

That  after  its  performance  at ,  the  plaintiff  de- 
sired to  be  transported  to  the  town  of ,  the  point 

of  its  next  engagement;  that  defendant's  agents  and  servants,  in 
violation  of  the  express  contract  entered  into  with  the  plaintiff, 
neglegently  and  willfully  refused  to  transport  the  plaintiff'  and 
willfully  and  negligently  refused  to  carry  out  said  contract  of 
transportation  with  the  plaintitf,  although  the  plaintiff  offered 
to  do  and  tendered  performance  of  everything  required  of  it 
under  said  contract,  at  all  times  being  ready  and  willing  to  pay 

the  compensation  provided  under  said  contract,  until  the 

day  of ,  19. .,  when  the  said  defendant  moved  the 

plaintiff'  company  to   ,  en  route  to   , 

moving  the  plaintiff's  private  sleeper  ear,  but  willfully  and  neg- 
ligently refusing  to  move  the  plaintiff's  baggage  ear. 

Plaintiff  alleges  and  avers  that  it  lost  all  of  its  engagements 

from    until  its  engagement  at   on 

the   day  of  ,  19 . .  ;  that  said  delay 

and  loss  was  sustained  and  occasioned  solely  and  only  by  the 
utter  disregard  exbibited  by  the  defendant  for  the  rights  of  the 
plaintiff  under  said  contract ;  tliat  there  was  an  utter  and  willful 
failure  upon  the  part  of  defendant's  agents  antl  servants  to 
comply  with  said  contract;  that  saiil  refusal  to  move  said  car 
and  to  comi)ly  with  said  contract  was  either  the  result  of  will- 
fulness or  utter  disregard  of  conse(|uences. 

The  plaintiff  alleges  and  avers  tiiat  by  reason  of  the  failure 

on  the  part  of  the  said  defendant  company,   ,  said 

plaintiff  sustainetl  actual  damag<'S  in  the  sum  of 

dollars;  that  the  defendant  refuses  to  pay  said  sum  or  any  part 
thereof,  although  often  demanded,  wherefore,  etc. 

1106  Trespass  on  land,  action 

An  action  of  assumpsit  which  arises  from  the  waiver  of  a 
trespass  or  injury  to  land  rests  upon  the  fiction  of  an  implied 
indebtedness  to  pay  the  damages  which  have  accrued  by  the 
commission  of  the  wrong. i"*^ 

1107  Trespass  on  land,  declaration,  requisites 

In  an  action  of  assumpsit,  under  Michigan  statute,  for  a  tres- 
is Bradley- Watkins  Co.  V.  Kala-      146    (1906);    (11207),    (11208),  C. 
mazoo  Circuit  Judge,  144  Mich.  142,       L.  1897  (Mich.) 


536  ANNOTATED   FORMS  OF   PLEADING    AND   PRACTICE 

pass  on  lands,  the  declaration  must  show  the  damages  to  have 
accrued  out  of  the  trespass. ^^^ 

1108  Use  and  occupation,  generally 

An  action  for  use  and  occupation  is  maintainable  at  common 
law  for  land  occupied  by  a  party,  when  the  relation  of  land- 
lord and  tenant  can  be  established  by  the  permission  and  assent 
of  the  owner  to  the  occupation,  by  an  express  or  implied  promise 
to  pay  a  certain  sum  in  satisfaction  of  such  use,  or  by  a  de- 
mise.^^°  This  action  is  also  maintainable  against  a  vendee  for 
his  occupation  of  premises  after  notice  of  the  vendor's  abandon- 
ment of  the  contract  for  its  purchase,  and  for  the  occupation  of 
premises  during  the  existence  of  a  contract  for  its  purchase,  If, 
the  vendee  has  abandoned  the  contract  without  the  vendor's 
fault.151 

By  special  statutory  provision,  which  was  passed  to  remedy 
certain  hardships  resulting  from  a  previous  statute,  an  action  of 
debt  or  assumpsit  for  use  and  occupation  is  maintainable  in  Illi- 
nois against  the  vendee  who  has  unjustly  occupied  premises 
under  a  contract  of  purchase  which  he  refuses  to  perform. ^^2 

No  implication  of  a  contract  to  pay  for  use  and  occupation 
arises  if  the  land  is  held  adversely  to  its  owner  and  all  the 
world.  1^3  This  is  so,  notwithstanding  the  Michigan  statute  which 
authorizes  the  bringing  of  an  action  of  assumpsit  for  trespass 
on  timber  land.  The  action  thus  authorized  being  intended  to 
be  one  for  damages  sustained  by  the  trespass  and  not  for  use  and 
occupation.1^4 

Use  and  occupation,  under  Michigan  practice,  may  be  sued 
for  generally  or  specially,  without  reference  to  the  form  of  the 
lease.^'"^^ 

An  action  for  use  and  occupation  is  not  confined  to  the  recov- 
ery of  rent  for  the  period  the  premises  were  actually  occupied, 
but  may  cover  the  rent  due  for  the  entire  period  until  the  rela- 

149  Lockwood  V.  Thunder  Bay  iss  Chicago  Terminal  Transfer  R, 
River  Boom  Co.,  42  Mich.  536,  540  Co.  v.  Winslow,  216  111.  166,  171 
(1880);  (11207),  C.  L.  1897  (1905);  Lockwood  v.  Thunder  Bay 
(Mich.).  River  Boom  Co.,  42  Mich.  539;  Ward 

150  Ward  v.  Bull,  1  Fla.  278;  v.  Warner,  8  Mich.  508,  520  (I860). 
Lockwood  V.  Thunder  Bay  River  is*  Lockwood  v.  Thunder  Bay 
Boom  Co.,  42  Mich.  538.  River    Boom    Co.,    42     Mich.    540; 

isiDwight  v.  Cutler,  3  Mich.  566,  (11207),   C.   L.    1897    (Mich.) 
575   (1855).  i55Conkling    v.    Tuttle,    52    Mich. 

i52Hadlev    v.    Morrison,    39    111.  630,  632   (1884). 
392,  398   (1866). 


ASSUMPSIT  537 

tion  of  landlord  and  tenant  has  been  legally  terminated  by  no- 
tiee.^^^ 

1109  Use  and  occupation,  life  and  sub-tenant,  death  of  life 

tenant,  proportiomnent  of  rent,  action 

At  common  law,  the  death  of  a  life  tenant  terminated  the 
sub-teuancy,  and  no  rent  could  be  recovered  from  the  sub-ten- 
ant for  the  time  he  occupied  the  premises  previous  to  the  death 
of  the  life  tenant,  because  the  rent  could  not  be  apportioned. 
By  Illinois  statute,  rent  which  is  due  at  the  death  of  a  life  tenant 
may  be  apportioned  and  recovered  in  an  action  against  the  sub- 
tenant.^^^ 

1110  Use  and  occupation,  Narr.  (111.) 

For  that  whereas,  to  wit,  on  the day  of , 

19..,  at,  to  wit,  the   city  of    ,  in  the  county  of 

aforesaid,  the  said  defendant  was  indebted  to  the 

plaintiff  in  the  sum  of   dollars  for  the  use  and 

occupation  by  defendant,  at  the  special  instance  and  request 
of  defendant,  of  certain  premises  of  the  plaintiff,  which  said 
premises  the  defendant,  by  the  sufferance  and  permission  of 
the  plaintiff,  had  for  a  long  time  prior  thereto  held,  used,  occu- 
pied, possessed  and  enjoyed,  which  said  mentioned  sum  of  money 
was  to  be  paid  to  the  plaintiff  by  the  defendant  on  reciuest ;  and 
being  so  indebted  tiie  said  defendant,  in  consideration  thereof, 
afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the 

city  of   ,  in  the  county  aforesaid,  undertook  and 

then  and  there  faithfully  promised  the  said  plaintiff  to  pay  to 
the  plaintiff  the  said  last  mentioned  sum  of  money  when  the 
defendant  should  be  thereunto  afterwards  requested.  Yet,  the 
defendant,  although  often  requested  so  to  do,  has  not  paid  to 
the  plaintiff'  the  said  sum  of  money  so  due  as  aforesaid,  or  any 
part  thereof,  but  so  to  pay  has  wliolly  refused  and  still  does  re- 
fuse, to  the  damage  of  the  plaintiff. 

h 

For  that  whereas,  at  and  during  the  time  wherein  the  cause 
of  action  herein  set  forth  accrued,  the  said  defendants  were 
partnei-s,  doing  business  under  the  name  of  "B,"  in  the  busi- 
ness of  catching  fish  in  Lake  Michigan,  and  selling  and  disposing 
of  the  same  in  the  state  and  county  aforesaid.    That  upon  the 

• day  of ,  the  said  defendants  entered 

into  a  verbal  agreement  with  plaintiff.  .  for  the  use  and  occu- 
pation of  certain  premises  in  the  city  of ,  state  of 

,  known  as  ,  to  be  used  by  the  said 

156  Huntington  v.  Parkhurst,  57  453,  455  (1911);  Par.  35,  c  80, 
Mich.  38,  46,  48   (1891).  Hurd's  Stat.   1911,  p.   1458. 

157  Wilson  V.  Hagey,  251  111.  452, 


538  ANNOTATED    FORMS   OP    PLEADING    AND    PRACTICE 

defendant  for  storage  and  dock  in  the  presecution  of  said  fish 
business,  for  which  said  use  and  oeeupaliuu  the  said  defendants 

agreed  to  and  with  this  plaintilf  to  pay  .  .h.  .  the  sum  of 

[^ )   dollars  per  month,  in  advance,  conunencing  on  the 

(Jay  of and  continuing  from  month 

to  month.     That  said  defendants'  use  and  occupation  aforesaid 

continued  from  the    day  of   ,  until 

the  day  of  That  plaintiff  agreed 

to  allow  defendants  a  credit  of ($ )  dollars, 

to  be  credited  on  the   ($ )   dollars  due  for 

the  montli  of ,  in  consideration  of  certain  repaii-s 

to  be  made  on  the  premises  by  defendants,  but  i)laintitf .  . 
allege.,  that  said  repairs  were  never  in  fact  made,  and  said 
agreement  for  credit  is  and  was  canceled,  and  there  is  still  due 

plaintiff. .,  from  defendants,   ($ )  dollars, 

for.  the  month  of aforesaid.     That  the  money  dlie 

for  the  months  of  ,    , 

as  aforesaid,  became  due  and  payable  upon  the _ of 

each  said  month,  making  a  total  sum  due  and  payable  from  said 

defendants,  to  plaintiff.  .,  for  the  aforesaid months, 

on  the day  of of ($ .  . ) 

dollars;  and  being  so  indebted,  the  defendants,  in  consideration 
thereof,  then  and  there  promised  the  plaintiff.,  to  pay  ..h.. 
the  said  sum  of  money  on  request.  Yet,  the  defendants,  though 
requested,  have  not  paid  the  same  or  any  part  thereof  to  the 
plaintiff,  but  refuse  so  to  do ;  to  the  damage  of  the  plaintiff  of 

($ )  dollars,  and  therefore  .  .he. .  bring. . 

this  suit. 

1111  Wages,  demand 

To : 

You  are  hereby  notified  that  the  sum  of dollars 

and cents  is  now  due  me  from  you  for  wages  as 

;  that  I  hereby  denmnd  of  you  payment  of  said 

sum ;  and  that  if  default  is  made  in  its  payment  for  three  days, 
I  shall  commence  suit  for  the  recovery  of  said  sum  and  the  stat- 
utory attorney's  fees.^^^ 

Dated,  etc.     (Add  affidavit  of  service) 

1112  Water,  failure  to  supply,  Narr.  (Miss.) 

That  the  said  defendants  are  indebted  to  the  plaintiffs  in  the 

sum  of   dollars  for  supplying  defendants'  tank, 

near ,  with  water,  from  the   day  of 

,  19 .  . ,  to  the day  of , 

19.  .,  at  their  request;  and  being  so  indebted,  the  defendants,  in 
consideration  thereof  afterwards,  to  wit,  on  the  date  and  year 
last  aforesaid,  then  and  there  undertook  and  faithfully  promised 

158  Par.    13,   c.    13,   Hurd's   Stat. 
1909. 


ASSUMPSIT  539 

the  plaintiffs  to  pay  them  said  sum  of  money  when  they,  the 
defendants,  should  be  thereunto  afterwards  requested. 

2.  And  that,  on  the  day  and  year  last  aforesaid,  in  consid- 
eration of  tlie  plaintiffs,  at  the  like  special  instance  and  request 
of  the  defendants,  had  before  that  time  supplied  defendants' 

tank,  near   ,  with  water,  from   the 

day  of ,  19 .  . ,  to  the day  of , 

19. .,  they,  the  defendants,  undertook  and  then  and  there  faith- 
fully promised  the  said  plaintiffs  to  pay  them  so  much  money 
as  they  therefor  reasonably  deserve  to  have  of  the  defendants 
when  they,  the  defendants,  should  be  thereunto  afterwards  re- 
quested; and  plaintiffs  aver  that  they  therefor  reasonably  de- 
serve to  have  of  the  defendants,  the  further  sum  of 

dollars,  of  which  the  defendants  had  notice.  Yet,  the  defend- 
ants, although  often  requested,  have  not  paid  the  plaintiffs  the 
said  several  sums  of  money,  or  either  of  them,  or  any  part 
thereof. 

COMMON  COUNTS 

1113  Generally;  common  and  special  counts 

Common  assumpsit  counts  or  indebitatus  assumpsit  will  sus- 
tain a  recovery  upon  an  express  contract  which  has  been  fully 
or  substantially  performed  and  nothing  remains  to  be  done  but 
to  pay  the  amount  due  under  it.^'^'-*  The  common  counts  are  in- 
sufficient to  permit  proof  of  an  excuse  of  the  non-performance 
of  a  condition  precedent ;  as  a  recovery  upon  a  contract  with 
condition  precedent  can  only  be  had  on  a  declaration  which 
states  the  reason  for  a  failure  to  comply  with  the  condition. ^^" 

In  assumpsit,  the  common  counts  and  a  count  upon  a  special 
contract,  are  distinct  and  different  causes  of  action,  where  the 
basis  of  recovery  is  different  under  each.^'^i 

1114  Award 

An  award  of  arbitrators  may  be  relied  upon  under  the  count 
of  accounty  stated,  or  under  the  common  assumpsit  counts. ^*^2 

159  Evans  v.  Howell,   211   111.   85,  ico  Expanded    Metal    Pireproofing 

92    (1904);   Olcese  v.   Mobile  Fruit  Co.    v.    Bovce,    233    111.     284,     289 

&    Trading:    Co.,    211    111.    539,    545  (1908),    overruling    Foster    v.    Mc- 

(1904);   Bauer  v.  Hindley,  222  111.  Keown,  192,  339  (1901)  as  to  scope 

319,  322  (1906);  Peterson  v.  Pusey,  of  common  counts. 

237  in.  204,  207   (1908),  Rubens  v.  lei  Eichter    v.     Michigan    Mutual 

Hill,  213  111.  523.  536  (1905);  Con-  Life  Ins.  Co.,  66  111.  App.  606,  608 

cord      Apartment      Hon«e      Co.      v.  (1896)  ;    Gorman    v.    Newaygo    Cir- 

O'Brien,  228  111.  360,  369    (1907);  cuit  Judge,  27  Mich.  138   (1873). 

Preston  v.  Smith,  156  111.  359,  363  102  Macdonald   v.    Bond,    195    111. 

(1895).  122    (1902). 


540  ANNOTATED   FOKMS   OF   PLEADING   AND   PRACTICE 

1115  Building  contract 

The  common  counts  are  insufficient  to  sustain  a  recovery  upon 
a  building  contract  which  recjuires  the  obtaining  of  an  archi- 
tect's certificate  as  a  condition  precedent  to  the  right  of  pay- 
ment. In  an  action  upon  a  building  contract  the  declaration 
must  set  out  the  contract,  aver  performance  as  to  the  furnishing 
of  material  and  the  performance  of  work,  and  state  tlie  reason 
for  the  failure  to  satisfy  the  condition  by  furnishing  the  archi- 
tect's certificate.  1*^^ 

1116  Fraud 

A  party  who  furnishes  material  and  labor  upon  fraudulent 
representations  that  he  is  obliged  to  do  so  may,  after  the  dis- 
covery of  the  fraud,  recover  the  value  of  the  material  and  labor 
under  the  common  counts.^*'^ 

1117  Gaming 

In  an  action  of  assumpsit  to  recover  money  lost  at  gaming,  it 
is  sufficient  to  count  upon  money  had  and  received  by  the  de- 
fendant to  the  plaintiff's  use.^"^  The  common  counts,  without 
the  conclusion,  "contrary  to  the  form  of  statute"  [contra  for- 
man  statuti)  will  support  the  recovery  of  money  deposited  for 
gaming  purposes,  if  no  objection,  based  upon  the  want  of  the 
allegation,  is  made  to  the  declaration  before  judgment.^*'" 

1118  Insurance  policy 

The  common  counts  are  insufficient  to  support  a  recovery  up- 
on a  policy  of  insurance.  ^^'^ 

1119  Money  had  and  received 

Money  had  and  received  may  be  recovered  under  the  common 
counts  for  money  had  and  received. ^®^  Money  obtained  un- 
justly and  inequitably  retained  by  a  person  may  be  recovered 
from  him  under  the  common  counts. ^*^^  No  contractual  relation 
is  necessary  to  support  a  count  for  money  had  and  received,  if 

163  Hart  V.  Carsley  Mfg.  Co.,  221  i66  Parmalee  v.  Rogers,  26  111.  56 

111.     444,     446     (1906);     Expanded  (1861). 

Metal  Fireproofing  Co.  v.  Boyee,  233  i'''^  Heffron   v.    Rochester   German 

111.    289,    overruling    Foster   v.    Me-  Ins.  Co.,  220  111.  514,  517   (1906); 

Keown,   192   111.  339.  Richter   v.    Michigan     Mutual    Life 

1G4  Citizens '    Gaslight    &    Heating  Ins.  Co.,  66  111.  App.  607. 

Co.  V.  Granger  &  Co.,  118  111.  266,  les  Chemical     National     Bank     v. 

270    (1886).  City  Bank,  156  111.  149,  154  (1895). 

166  Zimmerman   V.    Wead,    18    111.  ic9  Donovan    v.    Purtell,    216    III. 

304   (1857).  629,  642,  643   (1905). 


ASSUMPSIT 


541 


it  can  be  shown  that  the  money  sued  for  legally  belongs  to  the 
plaintiff.i^'^ 

1120  Money  paid  out  for  the  defendant 

An  action  under  this  count  is  sustainable  only  where  the 
money  was  paid  upon  a  request,  express  or  implied,  for  the  de- 
fendant, under  an  express  or  implied  contractual  relation.!^ i 

1121  Money  paid  under  protest 

The  common  counts  are  sufficient  to  sustain  an  action  against 
a  municipality  for  the  recovery  of  money  paid  to  it  under  pro- 
test.172 

1122  Payment  in  articles 

The  common  counts  are  sufficient  to  sustain  a  recovery  on  an 
agreement  to  pay  a  certain  sum  in  specified  articles  of  personal 
property,  at  an  agreed  price,  on  a  particular  day,  or  within  a 
reasonable  time,  and  there  is  a  failure  to  deliver  the  articles; 
because  in  such  case  the  non-delivery  of  the  articles  in  accord- 
ance with  agreement  converts  the  transaction  into  a  money 
obligation.^"^ 

1123  Promissory  note 

A  promissory  note  is  admissible  under  the  common  counts 
although  it  is  inadmissible  on  the  ground  of  variance  under  a 
special  count.i'^  A  joint  promissory  note  is  by  Illinois  statute 
joint  and  several  and  is  admissible  in  evidence  under  common 
counts  which  declare  jointly  and  severally-^^s 

1124  Special  assessment 

Under  a  Michigan  statute  a  common  count  for  money  paid 
is  sufficient  to  support  an  action  by  a  city  for  the  collection  of  a 
special  assessment.  ^^"^ 

iToHighwat       Commissioners      v.  i73  McKinnie  v.  Lane,  230  HI.  544, 

Bloominlton,     253     111.      104,     177       547^  (190J^).^^    ^     ^^^^^^^^^    ^3    ^^ 

iTiciiicago   V    Chicajro   &    North-  155.  158   (1867).    ^^     ^  ,     _    _,- 

western  Ry^  Co.,  186  111.  300.  303,  ^/^iH^r.son   v    Thackaberry,  248 

on^    /AQ(\r\\  HI-  512,  51b    (1911). 
''u/cSgo   V.  Northwestern    Mu-  x-  (3220),   C.    L.    1897    (Mich.), 

tual    Life    Ins.    Co.,    218    111.    40 
(1905). 


542  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

FORMS 

1125  District  of  Columbia 

The  plaintiff  sues  the  defendant  for  money  payable  by  the 
defendant  to  the  plaintiff  for  goods  sold  and  delivered  by  the 
plaintilf  to  the  defendant. 

And  for  work  done  and  materials  provided  by  the  plaintilf 
for  the  defendant  at  his  re((uest. 

And  for  money  lent  by  the  plaintiff  to  tiie  defendant. 

And  for  money  paid  by  the  plaintiff  for  the  defendant  at 
his  request. 

And  for  money  received  by  the  defendant  for  the  use  of  the 
plaintiff. 

And  for  money  found  to  be  due  from  the  defendant  to  the 
plaintiff  on  account  stated  l)etween  tiiem. 

And    the   phiintiff   claims   the   sum    of    dollars 

with  interest  from  the day  of ,  until 

paid,  according  to  the  particulars  of  demand  hereto  annexed. 

Against  administrator 

For  Avork  done  and  materials  provided  by  the  plaintiff  for 
the  defendant's  intestate  during  his  life  time  at  liis  i'ei|ui'st ; 
and  for  inoney  paid  by  the  plaintiff  for  the  defendant's  intes- 
tate during  his  life  time  at  his  re(|uest;  and  for  money  found 
to  be  due  from  the  defendant's  intestate  during  his  life  time 
to  the  plaintiff  on  account  stated  between  them. 

1126  Florida 

For  that,  on   day  of  ,  19 .  . ,  the 

defendant  was  indebted  to  the  plaintiff  in  the  sum  of 

dollars : 

1.  For  money  payable  l)y  the  defendant  to  the  plaintiff  for 
goods  bargained  and  sold  by  the  plaintiff  to  the  defendant. 

2.  For  materials  furnished  by  the  plaintiff  to  the  defendant 
at  his  request. 

3.  For  money  lent  by  the  plaintiff  to  the  defendant. 

4.  For  money  paid  by  the  plaintiff  for  the  defendant  at  his 
request. 

5.  For  money  received  by  the  defendant  for  the  use  of  the 
plaintiff. 

6.  For  money  found  to  be  due  from  the  defendant  to  the 
plaintiff  on  accounts  stated  between  them. 

7.  For  interest  and  divers  sums  of  money  due  to  the  plain- 
tiff by  the  defendant,  foreborne  to  the  defendant,  at  his  request 
by  the  plaintiff  before  this  time.    "Wherefore,  etc. 


ASSUMPSIT  543 

1127  Illinois;  goods  sold  and  delivered,  generally 

For  that  whereas,  heretofore,  to  wit,  on  the   

day  of    ,   19 . . ,   at    ,   to  wit,   at  the 

county  aforesaid,  the  said  defendant  became  and  w.  . . .  indebted 

to  the  said  plaintiff.  .   in  the  sum  of  dollars,  in 

lawful  money  of  the  United  States  of  America,  for  divers  goods, 
wares,  merchandise,  and  chattels,  by  the  said  plaintiff.  .  before 
that  time  sold  and  delivered  to  the  said  defendant .  .  at  .  .  h .  . 
special  instance  and  recjuest;  and  being  so  indebted,  .  .h.  .  the 
said  defendant..,  in  consideration  thereof,  afterwards,  to  wit, 
on  the  day,  year  and  place  last  aforesaid,  undertook,  and  then 
and  there  faithfully  promised  the  said  plaintiff. ,  to  pay  .  .h. . 
the  said  last  mentioned  sum  of  money,  when  the  said  defend- 
ant should  be  thereunto  afterwards  requested.      (Yet,  etc.)^'^'^ 

1128  Illinois ;  goods  sold  and  delivered,  quantum  valebant 

And  whereas  also  afterwards,  to  wit,  on  the  day  and  year 
last  aforesaid,  at  the  place  aforesaid,  in  consideration  that  the 
said  plaintiff.  .  had  before  that  time  sold  and  delivered  divers 
other  goods,  wares,  merchandise,  and  chattels  to  the  said  defend- 
ant.., at  ..h..  special  instance  and  request,  said  defendant,, 
undertook,  and  then  and  there  faithfully  promised  said  plain- 
tiff. .  to  pay  .  .h.  .  so  much  money  as  the  last  mentioned  goods, 
wares,  merchandise,  and  chattels,  at  the  time  of  the  said  sale 
and  delivery  thereof  were  reasonably  worth,  when  said  defend- 
ant. .  should  be  thereunto  afterwards  re(|uested ;  and  the  plain- 
tiff. .  aver..,  that  the  said  last  mentioned  goods,  wares,  mer- 
chandise and  chattels,  at  the  time  of  the  said  sale  and  delivery 

thereof,  were  reasonably  worth  the  further  sum  of 

dollars,  of  like  lawf\il  money,  to  wit,  at  the  place  aforesaid, 
whereof  the  said  defendant...  afterwards,  to  wit,  on  the  day 
and  year  last  aforesaid,  there  had  notice.     Yet,  etc.^^^ 

1129  Illinois ;  work,  labor  and  material 

And  whereas  also  afterwards,  to  wit,  on  the  day,  year  and 
place   last  aforesaid,  the  s<\id  defendant.,    became  and  w.... 

indebted  to  the  said  plaintiff.  .   in  the  further  sum  of 

dollars,  of  like  lawful  money  of  the  United  States  for 

work  and  labor,  care,  and  diligence  of  the  said  plaintiff.  .  by 
the  said  plaintiff. .  before  that  time  done,  performed  and 
bestowed,  in  and  about  the  business  of  the  said  defendant. . 
and  for  the  said  defendant,  .at  h.  ,  special  instance  and  re- 
quest, and  also  for  divers  materials  and  other  necessary  things 
by  the  said  plaintiff.  .  before  that  time  found  and  provided,  and 

177  2  Chitty  's  PI.,  pp.  55,  37  (star  i78  2  Chitty  's  PI.,  p.  38. 

paging). 


544  ANNOTATED   FORMS   OF    PLEADING   AND    PRACTICE 

used  and  applied,  in  and  about  that  Avork  and  labor  for  the  said 
defendant..,  and  at  ..h..  like  special  instance  and  request; 
and  being  so  indebted,  the  said  defendant.,,  in  consideration 
thereof,  afterwards,  to  wit,  on  the  day,  year  and  place  afore- 
said, undertook  and  then  and  there  faithfully  promised  to  the 
said  plaintiff,,  to  pay  .  .h.  .  the  said  sum  of  money  in  this 
count  mentioned,  when  the  said  defendant.  ,  should  be  there- 
unto afterwards  requested.     Yet,  etc.^^'^ 

1130  Illinois;  money  counts 

And  whereas  also  afterwards,  to  wit,  on  the  day,  year  and 
place  last  aforesaid,  the  said  defendant.  .    became  and  w.  .  .  . 

indebted  to  the  said  plaintiff.  .  in  the  further  sum  of 

dollars,  of  like  lawful  money  of  the  United  States: 

For  so  much  money  by  the  said  plaintiff,  .  before  that  time 
lent  and  advanced  to  the  said  defendant .  . ,  at  .  .  h . ,  special 
instance  and  request. 

And  also  for  so  much  money  by  the  said  plaintiff.  .  before 
that  time  paid,  laid  out,  and  expended,  to  and  for  the  use  of 
the  said  defendant.  .,  at  ,  .h. .  special  instance  and  request. 

And  also  for  so  much  money  by  the  said  defendant.  ,  before 
that  time  had  and  received  to  and  for  the  use  of  the  said 
plaintiff.  . , 

And  also  for  so  much  money  before  that  time  due  and  pay- 
able from  the  said  defendant.  .  to  the  said  plaintiff.  .,  for  inter- 
est upon  and  for  the  forbearance  of  divers  large  sums  of  mone}' 
before  then  due  and  owing  from  the  said  defendant  to  the  said 
plaintiff.  .,  and  by  the  said  plaintiff.  .  forborne  to  the  said 
defendant. .,  for  divers  long  spaces  of  time,  before  then  elapsed, 
at  the  like  special  instance  and  request  of  the  said  defend- 
ant . . . 

And  being  so  indebted,  the  said  defendant. ,,  in  consideration 
thereof,  afterwards,  to  wit,  on  the  day,  3'ear  and  place  afore- 
said, undertook  and  then  and  there  faithfully  promised  the 
said  plaintiff.,  to  pay  ..h..  the  said  several  sums  of  money 
in  this  count  mentioned,  when  he  the  said  defendant, ,  should 
be  thereunto  afterwards  requested.    Yet,  etc.^^° 

1131  Illinois;  account  stated 

And  whereas  also  afterwards,  to  wit,  on  the  day  and  year 

last  aforesaid,  at aforesaid,  the  said  defendant.  . 

accounted  with  the  said  plaintiff.  .  of  and  concerning  divers 
other  sums  of  money  from  the  said  defendant..,  to  the  said 
plaintiff.  .  before  that  time  due  and  owing,  and  then  in  arrear 
and  unpaid,  and  upon  such  accounting  the  said  defendant .  . 

179  2  Chitty 's  PI.,   p.    74.  iso  2  Chitty's  PL,   pp.   87,  88, 


ASSUMPSIT  545 

w then  and  there  found  to  be  in  arrear  and  indebted  to 

the  said  plaintiff.  .  in  the  further  sum  of dollars 

of  like  lawful  money,  and  being  so  found  in  arrear  and  indebted, 
the  said  defendant .  . ,  in  consideration  thereof,  afterwards,  to 
wit,  on  the  day  and  year  last  aforesaid,  at afore- 
said, undertook,  and  then  and  there  faithfully  promised  the 
said  plaintiff  to  pay  .  .  h .  .  the  said  last  mentioned  sum  of  money, 
when  the  said  defendant .  .  should  be  thereunto^  afterwards 
requested.     Yet,  etc.^^^ 

1132  Maryland 

For  money  payable  by  the  defendant. .  to  the  plaintiff.  . 

1.  For  goods  bargained  and  sold  by  the  plaintiff.,   to  the 
defendant... 

2.  And  for  work  done  and  materials  provided  by  the  plain- 
tiff for  the  defendant at  .  .h.  .  request. 

3.  And  for  money  lent  by  the  plaintiff.  .  to  the  defendant.  .  . 

4.  And  for  money  paid  by  the  plaintiff. .   for  the  defend- 
ant. .,  at  .  .h. .   request. 

5.  And  for  money  received  by  the  defendant.  .  for  the  use 
of  the  plaintiff.  . . 

6.  And  for  money  found  to  be  due  from  the  defendant. . 
to  the  plaintiff..,  on  accounts  stated  between  them. 

7.  And  for  that  the  defendant . . ,  on  the   day 

of ,  19. .  by  .  .h.  .  promissory  note  now  overdue, 

promised  to  pay  to  the  plaintiff.  .  $ after  date,  but 

did  not  pay  the  same. 

And  the  plaintiff. .  claim    $ 

Against  executor 

For  money  payable  by  the  defendant  to  the  plaintiff 

1.  For  goods  bargained  and   sold  by  the   plaintiff  to   the 
defendant's  testator. 

2.  And  for  work  done  and  materials  provided  by  the  plain- 
tiff for  the  defendant's  testator  at  his  request. 

3.  And  for  money  lent  by  the  plaintiff  to  the  defendant's 
testator. 

4.  And  for  money  paid  by  the  plaintiff  for  the  defendant's 
testator,  at  his  request. 

5.  And  for  money  received  by  the  defendant's  testator  for 
the  use  of  the  plaintiff. 

6.  And  for  money  found  to  be  due  from  the  defendant's 
testator  to  the  plaintiff,  on  accounts  stated  between  them. 

And  the  plaintiff  claims  $ 

i8i2Chitty'sPl.,p.  90.     In  prac-  mencing  with  "yet"  or  "neverthe- 

tice,  Sections  1127  to  1131  inclusive,  less"  is  inse^rted  only  at  the  end  of 

are  combined  in  one  declaration;  in  the  declaration, 
which  case,  the  common  breach  com- 


546  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

1133  Michigan 

For  that  whereas,  the  said  defendant. .  heretofore,  to  wit,  on 

the day  of ,  19 .  . ,  at  the 

of   ,  in  said  county  of    ,  indebted  to 

the  plaintiff.  .  in  the  sum  of doUars,  for  the  price 

and  value  of  goods  then  and  there  sold  and  delivered  by  the 
plaintiff.  .  to  the  defendant.  .,  at re(iuest. 

And  in  a  like  sum  for  the  price  and  value  of  work  then  and 
there  done,  and  materials*  for  the  same,  provided  by  the  plain- 
tiff. .  for  the  defendant.  .,  at request. 

And  in  a  like  sum  for  money  then  and  there  lent  by  the  plain- 
tiff. .  to  the  defendant.  .,  at reciuest. 

And  in  a  like  sum  for  money  then  and  there  paid  by  the  plain- 
tiff. .  for  the  use  of  the  defendant . .  at request. 

And  in  a  like  sum  for  money  then  and  there  received  by  the 
defendant. .  for  the  use  of  the  plaintiff.  . . 

And  in  a  like  sum  for  money  then  and  there  found  to  be  due 
from  the  defendant,  .to  the  plaintiff.,  on  an  account  stated 
between  them. 

And  thereupon,  the  said  defendant . .  afterwards,  and  on  the 
day  and  year  aforesaid,  in  consideration  of  the  premises  respec- 
tively, then  and  there  promised  the  plaintiff.  .  to  pay 

the  said  several  sums  of  money  respectively,  on  request:  Yet 
the  said  defendant.  .   (although  often  requested  so  to  do)  ha. . . 

disregarded    said   promises  and  ha .  .  .    not  paid 

any  of  the  sums  of  money,  or  any  part  thereof,  to  the  plaintiff. . 

damage  of    dollars,  and  therefore    

bring.  .  suit,  etc. 

1134  Virginia 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the 

day  of ,  19.  .,  the  defendant. .  w. . .  .  indebted  to 

the  plaintiff.  .  in  the  sum  of  $ for  the  price  and  value 

of  goods  then  and  there  sold  and  delivered  by  the  plaintiff. . 
to  the  defendant . .  at  re(iuest. 

And  in  the  sum  of  $ for  the  price  and  value  of  other 

goods  bargained  and  sold  by  the  plaintiff.  .  to  the  defendant. .  at 
request. 

And  in  the  sum  of  $ for  the  price  and  value  of  work 

then  and  there  done  by  the  plaintiff. .  for  the  defendant. .  at 
request. 

And  in  the  sum  of  $ for  materials  furnished  then 

and  there  by  the  plaintiff. .  to  the  defendant. .  at 

request. 

And  in  the  sum  of  $ for  money  then  and  there  lent 

by  the  plaintiff.  .  to  the  defendant. .  at request. 

And  in  the  sum  of  $ for  money  then  and  there  paid 

by  the  plaintiff. .  for  the  use  of  the  defendant. .  at 

request. 


ASSUMPSIT  547 

And  in  the  sum  of  $ for  money  then  and  there  received 

by  the  defendant. .  to  the  use  of  the  plaintiff. . . 

And  in  the  sum  of  $ for  money  found  to  be  due  from 

the  defendant.,  to  the  plaintiff.,  on  account  then  and  there 
stated  between  them. 

And  the  defendant. .  afterwards,  to  wit,  on  the  day  and  year 
aforesaid,  in  consideration  of  the  premises  respectively,  then 
and  there  promised  to  pay  the  said  several  sums  of  money  respec- 
tivelv  to  the  plaintiff.  .  on  request.  Yet  the  defendant.  .  ha.  . 
disregarded  the  said  promises,  and  ha.,  not  paid  any  of  the 
said  several  sums  of  money,  or  any  or  either  of  them,  or  any 
part  thereof,  but  to  pay  the  same  ha.  .  hitherto  wholly  failed 
and  refused,  and  still  refuse.  .,  to  the  plaintiff. .  damage  $. . . . 
And  therefore  .  .he. .  bring.  .   .  .h.  .  suit. 

p-  q- 

AFFIDAVIT  OF  CLAIM 

1135  District  of  Columbia 

Before  me ,  a  notary  public  in  and  for  the  Dis- 
trict of  Columbia  personally  appeared ,  who  being 

first  duly  sworn,  deposes  and  says:  that  he  is  the  plaintiff  in 
the  above  entitled  cause ;  that  the  said  defendant .  .  owes  and  is 

justly  indebted  to  said  plaintiff  in  the  full  sum  of 

dollars  for  groceries  and  cash  furnished  by  him  to  said 

at  his  special  instance  and  re(iuest;  that  the  said  pro- 
visions and  cash  were  furnished  said for  the  pur- 
pose of  enabling  him  to  carry  on  a  certain  contract  entered  into 

between  the  said and  the  said V^^  ^l!^ 

construction  of  a  certain  portion  of  said ;  that  the 

annexed  account  is  just  and  true  and  is  referred  to  and  made 
a  part  of  this  affidavit ;  that  the  prices  therein  charged  are  reason- 
able and  just  and  that  agreed  upon  by  the  said ; 

and  that  there  is  due  to  said  plaintiff,  the  aforesaid  amount  ot 
dollars  exclusive  of  all  set  offs  and  just  grounds  of 
defense,  with  interest  thereon  from  

Subscribed,  etc. 

1136  Illinois 

(Venue)                                                         ,  -,  -i    4. 
being  first  duly  sworn  deposes  and  says  that 
he  is'secretary  of  "A,"  a  corporation  organized  and  doing  busi- 
ness under  the  laws  of  the  state  of  ,  and  as  such 

is  authorized  to  make  this  affidavit;  that  the  demand  of  the 
plaintiff. .  in  the  above  entitled  cause  is  for  the  amount  due 
on  a  certain  bond,  a  copy  of  which  is  fully  set  forth  in  the  fore- 
going declaration,  and  that  there  is  due  to  the  plaintiff  from 


548  ANNOTATED   FORMS  OF  PLEADING   AND   PRACTICE 

the  defendants,  after  allowing  all  just  credits,  deductions,  and 

set  offs,   ($ )   dollars,  with  interest  on  that 

amount  according  to  the  terms  of  said  bond,  from  the   

day  of 19... 

Subscribed,  etc. 

1137  Maryland 

(Venue) 

I  hereby  certify,  that  on  this day  of , 

19.  .,  before  me,  the  subscriber,  a of  the  said  state, 

in  and  for  the  city  aforesaid,  personally  appeared plain- 
tiff. .  and  made  oath  in  due  form  of  law,  {tvho  being  conscien- 
tiously scrupulous  of  taking  an  oath),  did  solemnly,  sincerely  and 
truly  declare  and  affirm,  on  the  five  books  of  Moses,  (he  being  an 

Israelite),  that  there  is  justly  due  and  owing  by 

the  defendant.  .  in  the  said  case,  to  the  plaintiff.  .  on  annexed 

(the  cause  of  action  in  said  cause),  the  sum  of 

dollars  and    cents,    (with   interest 

from )  over  and  above  all  discounts,  to  the  best 

of  his  knowledge  and  belief. 

And  he  further  swears  that  he  is  the  agent  of  the  said  plain- 
tiff..  and  duly  authorized  to  make  this  affidavit,  and  has  per- 
sonal knowledge  of  the  matters  therein  stated. 

Witness,  etc. 


(Official  character) 

1138  Michigan 

In  actions  upon  an  open  account  or  an  account  stated,  the 
plaintiff  may  annex  to  his  declaration  or  process  whereby  his 
action  is  commenced,  a  copy  of  the  account  and  an  affidavit 
made  by  himself  or  by  anyone  in  his  behalf,  of  the  amount  due, 
as  near  as  can  be  estimated  over  and  above  all  legal  set  offs.  If 
the  account  is  so  annexed  and  the  affidavit  is  made,  a  copy  of 
each  must  then  be  served  upon  the  defendant  with  the  declara- 
tion or  process. IS-  The  treasurer  of  a  mercantile  corporation 
is  presumed  to  have  authority  to  make  an  affidavit  of  the 
amount  due  the  corporation  on  an  open  account  for  the  pur- 
pose of  basing  an  action  thereon.^^^ 

1139  West  Virginia 

(Venue) 

and having  been  duly  sworn  say 

that  they  are  the  plaintiffs  mentioned  in  the  foregoing  declara- 

182  (11191),  C.  L.   1897    (Mich.).       v.   Winter,   64  N.   W.    1053    (Mich. 

183  Forbes    Lithograph    Mfg.    Co.,       1895). 


ASSUMPSIT  54:9 


tion  and  that  there  is,  as  they  verily  believe,  due  and  unpaid 
fromTe  defendants  to  the  plaintiffs  upon  the  demands  statea 
[^'Sd  declaration,  including  prmcipal  -" ^Iw  te  c  elSts" 
ing  all  payments,  credits  and  set  offs  made  by  the  defendants 

and  to  which  they  are  entitled,  the  sum  of cloilars 

and  cents  at  this  date. 

Taken  and  sworn,  etc. 

Notary  Public. 
SPECIAL  DEFENSES  AND  PLEAS 

1140  Acceptance  of  bill  of  exchange;  denial,  pleadings 

The  denial  of  an  acceptance  of  a  bill  of  exchange  must  be  by 
plea  and  oath,  or  by  verified  plea  of  non-assumpsit.^s^ 

1141  Accord  and  satisfaction,  plea  (111.) 

185  That  after  the  making  of  the  several  promises  in  the  said 
declaration  mentioned   and  before  ^e^-mme-n^^^^^^^^^ 

Sid  he  \'h  defendantVpaid'to  the  plaintiff,  and  the  plaint^ 
accepted  from  him,  the  defendant,  divers  moneys  amounting 
?n  a  lar^e  sum  to  wit,  the  amount  of  all  the  sums  of  money 
n  the'sSdTciaration' mentioned.,  in  ^-j^  jf/.f^^^ 
charge  of  all  the  said  several  promises  and  all  the  sums  ot  money 
last  Soresaid,  and  this  the  defendant  is  ready  to  verify;  where- 
fore he  prays  judgment,  etc.,  when,  etc. 

Replicatio7i 

186  That  defendant  did  not  pay  to  the  plaintiff  the  moneys  |^ 
the  said  .   plea  in  that  behalf  mentioned,  in  full  satis- 

fatfon'and  discharge  of  the  several  Promises  and  sums  o^  money 
in  the  said  declaration  mentioned,  in  manner  and  form  as  the 
defendant  has  above  in  that  plea  alleged. 

1142  Agister's  lien;  plea  requisites 

A  plea  which  claims  an  agister's  lien  under  the  Illinois  stat- 
ute should  allege  the  substance  of  the  contract  by  v-^-  of  which 
the  animals  were  placed  in  the  agister's  keeping  to  show  the  ex- 
istence of  a  statutory  lien,  and  the  amount  thereof. 

.s.  Peoria   &    Oq.awka  E.   Co^  v.  ^  ^^  Co™ce  and  conclude  as  in 

Neill,  16  BL  2«9,  270   (1855    ;  see.  BecUon  9.8^^^^^  ^    ^^^^^^^  ^^^ 

52,    c.    110,    Kurd's   Stat,    uuy,    p.  ^^^     ^^^     (1896);    Par.    3,    c    82, 

''?8\- Commence  this  and  subsequent  Kurd's  Stat.   (1909). 
pleas  as  in  Sections  885  to  889  in- 
clusive. 


550  ANNOTATED  FORMS  OP   PLEADING   AND   PRACTICE 

1143  Bona  fide  defense,  failure  to  make;  plea  (111.) 

That  the  said  ,  sheriff,  as  afore- 
said, did  not  interpose  a  hona  fide  defense  to  said  suit  of 

against  him,  the  said sheriff,  Init  colluded 

and  conspired  with  the  said and ,  to  allow 

and  permit  the  said to  obtain  said  judgment  set 

forth  in  said count  against  him,  the  said,  sheriff  as 

aforesaid,  the  said not  having  at  the  time  a  bona 

fide  claim  and  demand  against  the  said as  against 

these  defendants;  and  this  the  defendants  are  ready  to  verify, 
wherefore  they  pray  judgment,  etc. 

Replication 

That  the  said  ,  sheriff,  as  afore- 
said, did  interpose  a  bona  fide  defense  to  said  suit  of 

against  him,  and  that  the  said sheriff  as  aforesaid, 

did  not  collude   and  conspire  with   the  said    to 

allow  and  permit  the  said  to  obtain  said  judg- 
ment set  forth  in  said count. 

1144  Commission,  real  estate  broker;  bad  faith 

A  real  estate  broker  is  not  guilty  of  bad  faith  in  affecting  a 
sale  by  exhibiting  to  a  purchaser  the  principal's  property  to- 
gether with  property  belonging  to  otliers  and  listed  with  tlie 
broker  for  sale.^^^ 

1145  Commission,  real  estate  broker;  license,  want  of,  plea  (111.) 

That  at  the  time  of  the  making  of  the  several  supposed  prom- 
ises and  undertakings  in  the  said  declaration  mentioned,  if 
any  such  were  or  was  made,  the  said  plaintiff  was  carrying  on 

and  exercising,  within  the  corporate  limits  of  the  city  of 

,  in  said  county,  to  wit,  at  the  county  of , 

the  business  of  a  real  estate  broker;  and  the  said  defendant  in 
fact  avers  that  at  and  prior  to  the  time  aforesaid  there  was 
and  had  been  and  from  thence  hitherto  has  been  and  still  is  in 

full  force  and  effect,  in  said  city  of ,  in  the  county 

of aforesaid,  an  ordinance  theretofore  duly  passed 

by  the  city  council  of  said  city  of ,  duly  approved 

by  the  mayor  of  said  city  and  duly  published  according  to  law, 
in  the  words  and  figures  as  follows:  (Set  out  ordinance  in  haec 
verba). 

And  the  said  defendant  further  avers  that  at  the  time  of 
the  making  of  the  said  several  supposed  promises  and  under- 

188  Lemon  v.  Macklem,   157  Mich. 
475,  478  (1909). 


ASSUMPSIT  551 

takings  in  said  declaration  mentioned,  the  said  plaintiff  had  not 
obtained  and  did  not  then,  nor  tlieretoi'ore  nor  thereafter,  have 
the  license  specified  in  said  ordinance  or  any  other  license  author- 
izing him  to  exercise  such  business  so  by  him  carried  on,  as  real 

estate  broker,  within  the  city  of ,  in  said  county  of 

;  but  on  the  contrary  thereof,  the  said  plaintiff  then 

was,  theretofore  had  been  and  still  is  exercising  the  said  busi- 
ness as  real  estate  broker  within  the  said  city  of , 

without  having  obtained  any  license  therefor,  and  in  violation 
of  the  provisions  of  said  ordinance. 

And  the  defendant  further  avers  that  the  sum  or  sums  of 
money  sought  to  be  recovered  in  this  action  by  said  plaintiff 
from  this  defendant  is  alleged  to  be  due  to  said  plaintiff  from 
this  defendant  for  commission  or  compensation,  alleged  to  have 
been  earned  by  said  plaintiff'  as  a  real  estate  broker,  in  the  sale 
of  certain  real  estate  for  this  defendant  and  at  her  alleged 
request,  within  the  said  city  of ,  at  the  time  afore- 
said; and  this  the  said  defendant  is  ready  to  verify,  wherefore 
she  prays  judgment  if  the  said  plaintiff  ought  to  have  the  afore- 
said, action  against  her,  etc. 

Replication 

That  at  the  time  of  the  making  of  the  promises  by  the  defend- 
ant, as  in  plaintiff's  said  declaration  mentioned,  he,  this  plain- 
tiff, was  not,  for  conunission  or  other  compensation,  engaged 
in  the  selling  of  or  negotiating  sales  of  real  estate  belonging  to 
others,  or  obtaining  or  placing  loans  for  others  on  real  estate 

in  the  city  of or  elsewhere,  in  manner  and  form 

as  the  defendant  has  above  in  her plea  alleged. 

1146  Contract;  mutuality,  test 

Unilateral  contracts  are  void  for  want  of  mutuality.  A  con- 
tract is  unilateral  where  the  (luantity  and  the  quality  of  the  sub- 
ject matter  of  the  contract  are  made  to  depend  solely  upon  the 
demand  and  the  satisfaction  of  one  of  the  parties  which  might 
render  the  carrying  out  of  the  contract  by  the  other  impractic- 
able or  impossible.^s^ 

1147  Contract,  termination 

A  contract  is  terminable  at  the  will  of  either  party  when  it 
has  no  definite  period  of  duration.  ^^'^ 

isoJolict  Bottlin<T  Co.  v.  Citizens  "o  JoHet  Bottling  Co.  v.  Citizens 

Browing    Co.,    254    111.     215,     219       Brewing  Co.,  supra. 
(1912). 


552  ANNOTATED   FORMS  OP  PLEADING  AND   PRACTICE 

1148  Conversion  by  sheriff,  plea  (111.) 

That  the  said   ,  sheriff,  did  not  pay  to 

the   defendants  out   of  the  proceeds  of  said   sale   averred   in 

said  count  to  be sufficient  to  satisfy  the  jud<,nnent 

of  the  defendants  against  the so  recovered  in  said 

attachment  suit,  or  any  part  thereof,  but  converted  the  same 
to  his  own  use  and  benefit;  and  this  the  defendants  are  ready 
to  verify,  wherefore  they  pray  judgment,  etc. 

Replication 

That  the  said  ,  sheriff,  as  afore- 
said, did  not  convert  the  proceeds  of  said  sale  averred  in  said 

count  to  be  the  sum  of ,  to  his,  the 

said    own  use  and  benefit. 

1149  Delivery  of  goods  by  sheriff,  without  consent;  plea  (111.) 

That  part  of  tlie  goods,  chattels  and  property  so  seized  and 
taken  possession  of  by  the  sheriff  as  in  said  count  mentioned 

■were  delivered,  surrendered  and  released  to 

with  the  consent  of  said  and  the  remain- 
der thereof  sold  and  the  proceeds  of  the  same  derived  there- 
from by   the  said    ,   sheriff  aforesaid,   were  paid 

over  to  in  full  settlement,  satisfaction  and  dis- 
charge of  all  claim  of  the  said   against  him,  the 

said   ,  sheriff,  and  no  part  of  said  proceeds  was 

paid  to  the  defendants   to  satisfy  their  said  demand   against 

;   and   this  the   defendants  are   ready  to  verify, 

wherefore  they  pray  judgment,  etc. 

Replication 

That  no  part  of  the  goods,  chattels  and  property  seized  and 

taken  possession  of  by  the  said  ,  sheriff  as 

aforesaid,  was  delivered,  surrendered  or  released  to  said 

with  the  consent  of  said and  the  remainder  thereof 

sold  and  the  proceeds  derived  therefrom  by  the  said , 

sheriff  as  aforesaid,  paid  over  to  said in  full  sat- 
isfaction, release  and  discharge  of  all  claims  against  him,  the 
said ,  sheriff. 

FIRE  INSURANCE 

1150  Additional  insurance,  substituted  policy 

The  substitution  of  one  policy  for  another  of  the  same  amount, 
although  of  a  different  company,  does  not  constitute  additional 
insurance  when  the  original  policy  is  canceled  after  the  issuance 
of  the  substituted  policy.  ^'^^ 

191  Hartford  Fire  Ins.  Co.  v.  Red- 
ding, 47  Fla.  228,  250  (1904). 


ASSUMPSIT  553 

1151  Arbitration  agreed  to  after  loss,  pending ;  plea  (111.) 

And  for  further  plea  in  this  behalf  the  defendant  says  that 
the  plaintiff  ought  not  to  have  his  aforesaid  action  against  it, 
the  defendant,  because  it  says  that  among  the  provisions  of  the 
policy  sued  upon  in  this  case,  which  provision  was  a  part  of 
the  consideration  of  the  said  policy,  was  one  providing  *  that  the 
amount  of  loss,  if  any  loss  should  occur  under  the  policy,  shall  be 
ascertained  and  estimated  by  appraisers  chosen  as  provided  in 
said  policy,  and  that  no  suit  or  action  shall  be  maintained  until 
the  amount  of  loss  is  so  ascertained  and  estimated  by  such  ap- 
praisers. And  this  defendant  avers  that  after  the  alleged  loss  by 
fire  of  the  property  named  in  the  said  policy  occurred,  that  this 
defendant  and  the  plaintiff  herein  mutually  agreed  that  the 
amount  of  such  loss  should  be  ascertained  by  appraisers  as  pro- 
vided in  the  said  policy,  and  that  said  appraisal  should  have  no 
effect  upon  the  other  provisions  of  said  policy  nor  waive  the 
rights  of  either  party  in  the  premises.  And  the  defendant  fur- 
ther avers  that  appraisers  were  chosen  by  each  party  as  pro- 
vided by  the  terms  and  conditions  of  said  policy,  and  that  said 
appraisal  without  any  fault  on  the  part  of  this  defendant  was 
still  pending  and  undetermined  at  the  time  this  suit  was  brought. 
(Pray  judgment) 

Feplication 

That  he  did  not,  after  the  alleged  loss  by  fire  of  the  property 
in  question,  make  the  agreement  with  the  defendant  as  stated 
in  said  plea  that  said  loss  should  be  ascertained  by  appraisers 
as  provided  in  said  policy,  and  that  said  appraisal  should  have 
no  effect  upon  the  other  provisions  of  said  policy;  nor  did  he 
agree  that  the  rights  of  either  party  in  the  premises  shall  be 
waived.  And  plaintiff  denies  that  under  any  such  agreement 
appraisers  were  chosen  by  each  party  as  provided  by  the  terms 
and  conditions  of  said  policy,  and  that  said  appraisal  was  pend- 
ing and  undetermined  at  the  time  suit  was  brought,  without 
any  fault  on  the  part  of  defendant. 

1152  Arbitration  under  policy  pending;  plea  (111.) 

^^-  That  the  company  shall  not  be  liable  beyond  the  actual 
cash  value  of  the  property  at  the  time  any  loss  or  damage  occurs, 
that  the  loss  or  damage  shall  be  ascertained  or  estimated  accord- 
ing to  such  actual  cash  value  with  proper  deductions  for  depre- 

192  Commence  as  in  Section   1151 
to  star. 


554  ANNOTATED  FORMS  OP  PLEADING   AND   PRACTICE 

ciations,  however  caused,  and  shall  in  no  event  exceed  what  it 
would  then  cost  the  insured  to  repair  or  replace  the  same  with 
material  of  like  kind  or  quality;  that  such  ascertainment  or 
estimate  shall  be  made  by  the  assured  and  this  company,  or  if 
they  differ,  then  by  the  appraisers  therein  provided;  that  in 
the  event  of  a  disagreement  as  to  the  amount  of  loss  the  same 
shall  be  ascertained  by  two  competent  and  disinterested  apprais- 
ers, the  assured  and  this  company  each  selecting  one  and  the 
two  so  chosen  to  select  a  competent  and  disinterested  umpire; 
that  the  appraisers  shall  then  estimate  and  appraise  the  loss 
stating  separately  sound  value  and  damage,  and  failing  to  agree 
shall  submit  their  difference  to  the  umpire,  and  the  award  in 
writing  of  any  two  shall  determine  the  amount  of  such  loss; 
that  the  company  shall  not  be  held  to  have  waived  any  provision 
or  condition  of  this  policy  or  any  forfeiture  thereof  for  any 
requirement,  act  or  proceeding  on  its  part  relating  to  the 
appraisal,  or  of  any  examination  therein  provided  for,  and  that 

the  loss  shall  not  become  payable  until days  after 

the  notice,  ascertainment,  estimate  and  satisfactory  proof  of 
the  loss  so  required  have  been  received  by  the  company,  includ- 
ing an  award  by  appraisers  when  appraisal  has  been  required; 
that  no  suit  or  action  on  said  policy  for  the  recovery  of  any 
claim  shall  be  sustained  in  any  court  of  law  or  equity  until 
after  full  compliance  by  the  assured  with  all  the  reciuirements 
of  the  said  policy,  among  which  reciuiremenjts  is  the  one  above 
referred  to  providing  that  the  amount  of  loss  shall  be  ascer- 
tained by  appraisers  in  case  of  disagreement  between  the  insurer 
and  the  insured. 

And  this  defendant  avers  that  after  the  alleged  loss  by  fire 
to  the  property  named  in  the  said  policy,  the  insurer  and  in- 
sured endeavored  to  agree  between  themselves  as  to  the  amount 
of  such  loss,  but  this  defendant  avers  that  said  parties  were 
unable  to  agree  upon  the  same,  and  that  thereupon  this  defend- 
ant demanded  that  the  amount  of  such  alleged  loss  be  ascer- 
tained by  appraisers  as  provided  in  said  policy. 

And  the  defendant  further  avers  that  on,  to  wit,  the 

day  of    ,   19 . . ,  the  plaintiff  and  this  defendant 

each  selected  an  appraiser  as  provided  by  the  terms  and  condi- 
tions of  the  said  policy,  and  agreed  that  said  appraisers  might 
fix  the  amount  of  the  alleged  loss.  And  this  defendant  further 
avers  that  without  any  fault  whatever  upon  the  part  of  this 
defendant,  and  without  any  connivance  or  collusion  on  the  part 
of  this  defendant,  the  said  appraisers  were  unable  to  agree  upon 
the  amount  of  the  said  loss  up  to  the  time  of  the  bringing  of 
this  suit,  and  that  the  said  appraisal  was  still  pending  and  unde- 
termined at  the  time  said  suit  was  brought,  and  still  is  pending 
and  undetermined.     (Pray  judgment) 


ASSUMPSIT  555 

Replication 

That  after  the  making  of  the  agreement  between  the  defendant 
and  the  plaintilf  to  appraise  said  loss  as  is  in  said  plea  alleged, 
the  said  defendant  was  not  without  fault,  connivance  and  col- 
lusion in  being  unable  to  agree  upon  the  amount  of  said  loss 
up  to  the  time  of  beginning  this  suit,  but  the  plaintiff  avers 
that  the  said  defendant,  refused  without  good  and  sufficient 
cause  to  go  on  and  complete  said  appraisement,  and  by  neglect, 
delay  and  unfair  action  defeated  such  appraisement  and  the 
object  and  purjDOse  for  which  said  agreement  for  an  appraisal 
of  said  loss  was  made,  and  that  said  appraisal  was  not  still 
pending  and  undetermined  at  the  time  said  suit  was  brought, 
and  is  not  now  still  pending  and  undetermined  for  the  reason 
aforesaid. 

Pleah 

That  the  said  policy  of  insurance  set  out  in  said  declara- 
tion herein  contains  certain  conditions  and  provisions  which 
are  in  the  words  and  figures  following:  (Insert  conditions  relat- 
ing to  additional  insurance  and  arbitration). 

And  the  said  defendant  avers  that  at  the  time  of  the  said 
alleged  loss  by  fire,  there  was  in  force  other  insurance  covering 
the  said  property  in  said  policy  described,  to  wit:  a  certain 

policy  of  insurance  issued  by  the   ,  insuring  said 

property  against  loss  or  damage  by  fire,  to  an  amount  not  exceed- 
ing   dollars,  and  a  certain  other  policy  issued  by 

the against  loss  and  damage  by  fire,  to  an  amount 

not  exceeding   dollars ;   which  said  policies  and 

each  of  them  were  issued  to  the  said  F  and  N,  the  owners  of 
said  property  in  said  policies  described,  which  was  the  same 
property  covered  by  the  said  policy  in  said  declaration  men- 
tioned.   • 

And  the  said  defendant  further  avers  that,  after  the  happen- 
ing of  the  said  supposed  loss  or  damage  by  fire,  as  in  said  declara- 
tion alleged,  a  disagreement  arose  between  the  said  assured  and 
the  said  defendant,  as  well  as  the  said  other  insurance  compan- 
ies above  mentioned,  as  to  the  amount  of  the  said  loss  and  dam- 
age to  the  property  in  said  policies  described ;  and  thereupon, 
in  pursuance  of  the  terms  of  the  said  policy,  the  said  insured, 

on,  to  wit,  the  day  of ,  19 .  . ,  made 

and  entered  into  a  certain  agreement  in  v^'riting  with  the  said 
defendant,  joined  by  the  said  other  insurance  comanies,  wherein 
it  was  agreed  that  the  said  differences  between  the  said  insured 
and  the  said  insurance  companies,  including  this  defendant, 
should  be  and  were  thereby  submitted  to  arbitration,  in  accord- 
ance with  the  terms  of  the  said  policies,  and  that  one  D,  and 
one  S  were  therein  named  as  the  persons  chosen  and  selected 
by  the  said  parties  who,  together,  should  choose  a  third  per- 
son to  act  with  them  before  entering  upon  the  appraisement  of 


556  ANNOTATED   FORMS   OP   PLEADING   AND'  PRACTICE 

the  said  property  and  the  said  supposed  damage  thereto,  and 
that  the  said  appraisers  and  umpire  so  appointed  and  selected 
should,  thereupon,  together,  proceed  to  appraise  said  property 
and  to  ascertain  and  fix  the  immediate  damage  thereto  caused 
by  said  alleged  fire,  as  will  more  luUy  and  at  large  appear  from 
the  said  contract  or  agreement,  bearing  date  the  day  last  afore- 
said. 

And  the  said  defendant  further  avers  that  afterwards,  to  wit, 
on  the  day  last  aforesaid,  the  said  D  and  S  made  and  entered 
into  a  certain  agreement  in  writing,  wherein  it  was  mutually 
agreed  that  one  L  should  act  as  the  third  person  to  be  chosen 
by  them,  as  provided  by  the  said  agreement  hereinbefore  referred 
to;  and  afterwards,  to  wit,  on  the  day  and  year  last  aforesaid, 
in  pursance  of  the  said  agreement,  the  said  D,  S  and  L  appraised 
the  said  property  and  made,  executed,  declared  and  published 
their  certain  award  in  writing,  wherein  and  whereby  the  said 
damage  upon  said  property  in  said  policy  described  was  fixed 

at  the  sum  of  $. ,  and  it  was  in  and  thereby  adjudged 

that  said  insurance  companies  and  the  said  defendant  should 

pay  to  the  insured  the  said  sum  of   ($ ) 

dollars  in  pursuance  of  the  said  policies,  as  by  the  said  agree- 
ments and  each  of  them,  bearing  date,  to  w'it,  the 

day  of   ,  19 .  . ,  and  the  said  award  bearing  date, 

to  wit,  the  day  of ,  19 .  . ,  reference 

thereto  being  had,  will  more  fully  and  at  large  appear. 

And  the  said  defendant  avers  that  the  said  property  so  as 
aforesaid  covered  by  said  policy  of  insurance  in  said  declara- 
tion mentioned,  or  any  part  tiiereof,  was  not  totally  destroyed 
by  the  said  alleged  fire,  but,  on  the  contrary,  avers  that  none 
of  said  property,  or  but  a  very  small  portion  thereof,  was  dam- 
aged or  destroyed  by  said  fire,  and  that  the  said  appraisement 
and  award  fixed  and  determined  the  whole  amount  of  the  loss 
and  damage  to  all  the  property  covered  by  the  said  policy  of 

insurance,  to  wit,   ,  at  the  time  when,  etc.,  to  wit, 

at  the  county  aforesaid,  and  so  the  said  defendant  says  that 
the  said  appraisement  and  award  fully  and  fairly  fixed  and 
determined  the  whole  amount  of  the  loss  and  damage  sustained 
by  said  plaintiff  on  account  of  the  said  alleged  fire. 

And  the  said  defendant  further  avers  that  due  notice  of  said 
award  was  afterw^ards  given  to  the  said  insured  and  to  said 
defendant  and  to  the  said  other  insurance  companies  by  said 
appraisers.  That  the  said  defendant,  at  all  times  had  been 
and  now  is  ready  and  willing  to  pay  to  the  said  F  and  N  or 
to  their  legal  assignee,  its  just  proportionate  share  of  the  said 
award,  in  accordance  wdth  the  terms  of  the  said  policy,  to  wit, 

the  sum  of dollars,  and  that  the  said  award  still 

remains  and  is  in  full  force  and  effect,  of  all  of  which  the  said 
F  and  N  and  their  assignee,  the  said  plaintiff,  have  at  all  times 
had  due  notice :     (Pray  judgment). 


ASSUMPSIT 


557 


Replication 

That  the  appraisement  and  appraisal  and  award  mentioned 

in  said  count  in  said  defendant's plea,  was  m  all  respects 

irregular  and  improper,  and  that  the  same  is  a  fraud  either  in 
fact  or  in  law,  and  that  it  was  made  either  fraudulently  or  with 
fraudulent  intention,  and  works  a  fraud  and  injustice  by  reason 
of  the  gross  errors  committed  by  the  appraisers  therein,  tor  the 
plaintiff  says  that  unknown  to  the  plaintiff  the  appraisers  were 
guilty  of  fraudulent  and  unwarranted  action  in  appraising 
(Describe  property).  That  the  (Describe  property)  damaged 
and  appraised  by  the  appraisers  in  this  case  was  worth  m  the 

market  at  that  time and  that  all  the  witnesses  called 

before  and  examined  by  the  said  appraisers,  being  ...... .per- 
sons well  versed  in  the  kind,  quality  and  market  price  o±  the 
said  goods,  testified  before  the  said  appraisers  that  the  goods 
which  they  were  then  appraising  were,  at  the  time  of  the  said 

fire   worth in  this  market,  and  that  there  were  no 

other  witnesses  before  the  said  appraisers  who  testified  differ- 
ently and  that  after  hearing  said  testimony,  said  appraisers, 
throu^'h  fraud  or  mistake,  fixed  the  value  of  said  goods  so  by 

them  appraised,  at And  plaintiff  further  avers 

that  said  appraisers  were  incompetent  and  were  wholly  unad- 
vised as  to  the  value  of  (Describe  property)  except  from  the 
evidence  of  the  said  witnesses  given  to  the  said  appraisers  as 
above    set    forth.      And   the   plaintiff    further   says    that   saad 
appraisement  and  appraisal  and  award,  though  fixed  by  the 
said  appraisers  and  arlntrators,  does  not  show  in  any  measure 
or  fix  any  price  upon  the  amount  of  goods  that  was  totally  lost 
or  consumed  by  fire,  and  that  the  said  appraisal  and  award 
was  only  made  and  intended  to  apply  and  did  apply  to  the 
goods  in  sight  and  which  had  been  damaged  by  fire,  and  had 
no  reference  whatever  to  the  goods  totally  destroyed     And  the 
plaintiff  further  says  that  when  the  said  F  and  N  and  the  plain- 
tiff   their   assignee,   discovered   the   fraudulent,   irregular   and 
improper  character  of  the  appraisal  and  award,  they  forthwith 
rightfully  and  properly  refused  to  abide  by  the  same,  and  there- 
upon gave  notice  to  the  defendant  of  said  fact  and  made  imme- 
diate demand  for  another  and  proper  and  just  appraisal,  which 
was  by  the  said  defendant  refused  and  denied;  and  theretore 
the  said  appraisement  and  award  does  not  remain  m  full  force 
and  effect,  and  the  plaintiff  and  the  assured  justly  refused  to 
accept  from  the  defendant  its  proportionate  share  ot  the  said 
fraudulent  and  irregular  award;  and  this  the  plaintiff  is  ready 
to  verify,  wherefore  he  prays  judgment. 

1153  Cancelation  of  policy,  plea 

That  it  is  provided  in  said  policy  of  insurance  set  ont  in 
plaintiff's  declaration,  among  other  things,  as  follows:        This 


558  ANNOTATKD    FORMS   OF   FLKADINQ   AND    i'UACTICB 

policy  shall  be  canceled  at  any  time  at  the  request  of  the  insured 
or  by  the  cornpfi ny  by  Kivinf? days'  notice  of  such  can- 
celation. If  this  i)olicy  shall  be  canceled  as  hereinbefore  pro- 
vi(l(!d  or  b(;come  void  or  cease,  the  premium  haviiif,'  been  paid, 
the  iirKiarricd  i)ortion  shall  be  returned  on  surr(;iider  of  this 
policy  or  last  r(!n(;vval,  this  company  retainin^c  the  customary 
short-rates;  excei)ting  that  when  this  poVic.y  is  canceled  by  this 
company  l)y  giving  notice,  it  shall  retain  only  the  pro  rata  prem- 
ium."    And  defendant  avers  that  it  did  by  and  through  its 

duly  authorized  agent,   ,  give days'  notice 

of  the  cancelation  of  the  policy  mentioned  in  plaintiff's  said 
declaration,  and  did  (;ancel  said  policy  by  a  letter  or  notice  in 
writing  in  the  following  words  and  figures,  to  wit:  (Set  out 
notice  or  letter). 

And  defendant  further  avers  that  said  notice  bearing  date 

,  10 .  . ,  was  directed  to ,  at 

J    ,  as  aforesaid,  who  was  then  and  there 

the  agent  and  bi-oker  of  the  plaintiff  and  at  that  time  and  for 
a  p(!riod  long  j)rior  thereto,  had  in  charge  i)laintin"s  said  insur- 
ance, and  w;is  duly  anlhori/.cd  1o  attend  to  cancelation  of  said 
plaiiitirr's  iiisuraMcc!,  had  fr<'(|uently  prior  to  the  cancelation  of 
this  policy  acted  for  and  in  ])ehalf  of  the  plaintid"  in  receiving 
arnl  agreeing  to  the  cancelation  of  other  policies  of  insurance 

taken  out  by  the  said  plaintiff  through  the  said ., 

wliil(!  acting  as  agent  and  broker  as  aforesaid  of  the  said  plain- 
tiff, all  of  which  ads  of  the  said the  plaintiff  and 

the  defendant  both  had  knowledge;  that  said  notice,  so  directed 

to   said aforesaid,   thereby   notified  the   plaintiff 

that  th(!  (leH^ndant  had  canceled  the  said  policy  of  insurance; 
and  that  said  hrtfer  or  notice  was  placed  in  an  envelope,  which 

said  envelope  was  plainly  addressed  to  said .,  at 

,    ,  duly  stamped  and  placed  in  the 

United  States  mail,  whicli  said  letter  or  notice,  in  due  course 

of  r(i;iil,  was  reeeived  by  the  said ,  broker  and  agent 

of  the  i)laiMlin"  as  aforesaid.  And  the  defendant  further  avers 
that  because  of  such    letter  or  notice  in  writing,  as  aforesaid, 

sent  as  aforesaid,  by   the  duly  authorized  agent 

of  the  i)laintiff,  and   by  the  said    duly  received 

in  due  course  of  mail,  said  policy  of  insurance  mentioned  in 
pl.-iintilf's  declaration  was  then  and  thereby  canceled;  and  that 

again,  on,  to  wit, ,  defendant  notified  plaintiff 

eon(ir-ming  said  cancelation  and  demanded  a  return  of  said 
policy.  And  defendant  further  avers  that  plaintiff  never  paid 
to  defendant  or  any  of  its  duly  authorized  agents,  any  part  of 
the  jireitiiums  in  said  policy  mentioned,  and  that  there  was  no 
un(>arned  |)femium  in  lh(>  luuids  of  the  defendant  to  be  returned 
to  [daintirr,  and  therefore  no  tender  of  any  was  required.  By 
reason  whereof,  defendant  avers  that  plaintiff  has  no  cause  of 
action  against  defendant  under  said  policy  in  said  plaintiff's 


ASSUMPSIT  559 

declaration  mentioned,  for  the  loss  of  the  property  therein  set 
forth;  all  of  which  defendant  is  ready  to  verify,  etc. 

1154  Causing  fire,  pleading 

In  Florida,  an  insurer  has  a  right  to  plead  that  the  fire  was 
caused  by  criminal  conduct  of  the  insured  or  that  the  fixing  of 
the  insurable  value  was  procured  by  fraud,  notwithstanding  the 
act  of  1899 ;  as  the  principal  object  of  that  act  is  merely  to 
fix  the  measure  of  damages  to  be  recovered  in  case  of  partial  or 
total  loss.i'J3 

In  Michigan  the  destruction  of  premises  by  the  insured  can- 
not be  shown,  unless  specially  pleaded  or  noticed. ^^^ 

1155  Causing  fire,  plea  (District  of  Columbia) 

That  the  plaintiff  wilfully  and  fraudulently  caused  the  fire 
which  damaged  and  destroyed  the  personal  property  covered  by 
the  policy  of  insurance  set  out  in  plaintiff's  declaration. 

1156  Forfeiture,  waiver 

No  new  consideration  is  necessary  to  support  the  waiver  of 
the  right  to  forfeit  an  insurance  policy;  nor  is  it  essential  that 
the  facts  relied  upon  as  a  waiver  shall  constitute  an  equitable 
estoppel.^^^ 

1157  Incumbrance,  plea  (Md.) 

And  for  a  plea  to  the   count  of  the 

plaintiff's  declaration  that  the  policy  of  insurance  herein  sued 
on  contained  a  condition  as  follows: 

"This  entire  policy  shall  be  void  if  the  insured  had  concealed 
or  misrepresented,  in  writing  or  otherwise,  any  material  fact 
or  circumstance  concerning  this  insurance  or  the  subject  thereof ; 
or  if  the  interest  of  the  insured  in  the  property  be  not  truly 
stated  herein." 

And  that  the  interest  of  the  plaintiff  was  not  truly  stated 
therein,  as  the  said  policy  insured  only  the  plaintiff,  and  prior 
to  the  time  of  the  execution  of  said  policy,  the  plaintiff  had 
executed  a  mortgage  on  said  property,  to  wit,  a  certain  deed  of 

193  Hartford     Fire     Ins.    Co.    v.  Hannawold,     37     Mich.     103,     106 

Redding,  47  Fla.  235;  c.  4677  Laws  (1877). 

1899    (Fla.).  i95Tillis  v.   Liverpool   &   London 

19*  Marlev  v.  Liverpool  &  London  &  Globe  Ins.  Co.,  46  Fla.  268,  280 

&  Globe  Ins.  Co.,  92  Mich.  590,  592  (1903). 
(1892);  Eesidence  Fire  Ins.  Co.  v. 


560  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

mortgage  in  the  amount  of    ($ )    dollars, 

dated   ,  19 .  . ,  and  executed  by   and 

his  wife,  and  said  mortgage  ever  since  said  time  has  been  upon 
said  property;  and  the  said  plaintiff  concealed  from  the  defend- 
ant and  misrepresented  to  the  defendant  said  fact,  at  the  time 
of  the  execution  of  said  policy  and  prior  thereto,  and  the  defend- 
ant has  not  waived  its  rights  thereunder,  nor  has  any  one 
authorized  so  to  do,  done  so  on  behalf  of'  said  defendant. 

Eeplication 

That  the  mortgage  referred  to  in  said  plea  covers acres 

of  land  and  was  given  when  there  were  no  improvements  on  said 
land,  and  the  existence  of  said  small  mortgage  was  not  a  material 
fact  or  circumstance  to  the  risk  of  this  insurance ;  and  that  the 
plaintiff  did  not  conceal  the  existence  of  said  mortgage  or  make 
any  misrepresentation  concerning  the  same ;  and  that  there  was 
attached  to  said  policy  a  rider  which  contained  the  following 
provision:  "Loss  if  any  payable  to  assured  as  interest  may 
appear," 

1158  Iron  safe  clause,  pleading 

A  breach  of  the  iron  safe  clause  in  a  policy  is  a  matter  of 
affirmative  defense  and  must  be  specially  pleaded. ^^^ 

1159  Limitation,  waiver,  proof 

Waiver  of  a  limitation  clause  in  a  policy  is  provable  under 
the  general  issue  where  the  declaration  avers  that  the  insurer 
by  fraud  or  holding  out  reasonable  hopes  of  an  adjustment  de- 
terred the  plaintiff  from  commencing  his  suit.^^^ 

1160  Overvaluation,  plea  (District  of  Columbia) 

That  in  and  by  the  policy  of  insurance  set  out  in  plaintiff's 
declaration  it  was  provided  that  it  should  be  void  in  case  of  any 
fraud  or  false  swearing  by  the  insured  touching  any  matter 
relating  to  the  insurance,  or  the  subject  thereof,  whether  before 
or  after  a  loss;  and  the  defendant  says  that  said  plaintiff,  on 

or   about   the    day   of    ,    . . . . , 

nearly months  after  date  on  which  it  is  alleged  the 

aforesaid  personal  property  was   destroyed  by  fire,   appeared 

before  one ,  a  notary  public  in  and  for  the  District 

of  Columbia  and  falsely  and  fraudulently  made  oath  that  the 
aforesaid  personal  property  alleged  to  have  been  destroyed  or 
damaged  by  fire,  was  of  the  value  of   ,  knowing 

196  Tillis   V.   Liverpool   &   London  i97  Illinois    Live    Stock    Ins.    Co., 

&  Globe  Ins.  Co.,  46  Fla.  279.  v.  Baker,  1.53  111.  240,  241    (1894). 


ASSUMPSIT  ^"1 


full  well  at  the  time  that  said  personal  property  was  not  worth 
that  amount  and  was  not  worth  the  sum  of   ...  ...  •  •  •  •  •  •  •  <im 

tvl  the  amount  of  the  policy  of  insurance  obtained  from  the 
defendant. 


Pleah 


That  it  was  provided  in  and  by  the  policy  of  insurance  set 
nut  in  Dlainttff 's  declaration  that  it  should  be  void  if  any  mate- 

?SS»t  reTrtsentato'^ls'a  material  and  essential  induce- 
ment to  the  issuance  of  said  policy  of  insurance. 

1161  Proof  of  loss,  plea  (District  of  Columbia) 

That  the  plaintiff  did  not  furnish  proof  of^said  los^s  on^or  aboi.t 

*'such'form  as\vas  accepiable  to  th«i' 'J'if^/r'/"?^!"; 

f  „  tWnncrl,  it<i  ffencral  agent;  and  the  defendant  further 

Ll^that    t"^did  not    act?ig  Hiroigh  its  general  agent,  waive 

du?and  formal  proof  of  said  alleged  loss  as  alleged  in  the 

count  of  plaintiff's  declaration. 


Plea  b 


Tbaf  in  and  bv  the  policy  of  insurance  set  out  in  plaintiff's 
deSt  on  °t  was  provided  that  should  a  fire  occur,  the  plain- 

iff^houlT' within       days  thereafter,  unless  such  a  time 

rexteuded^n  writing  by  the  defendant,  render  a  statement  to 
defendant  s^ed  and  sworn  to  by  the  plaintiff,  stating  hs 
knowledge  and  belief  as  to  the  time  and  origin  of  the  f^re;  hs 
rnterest  and  that  of  all  others  in  the  property;  the  cash  value 
of  each  item  and  the  amount  of  loss  thereon;  al  incumbrances 
^hereon  aTo^her  insurance,  whether  valid  or  not,  covering  any 
If  3'DroVerty  a  copy  of  all  the  descriptions  and  schedules 

■i  arpoSTfny  <^^ ^^^^'^^Xt^^'o^ 
Lrprv"W"Xmn°/f:rwbrp^::;^se%ny  building  therem 

Si:i  '^-r'deSa*nrs:$  trat!=:^a5 

mfuir^ed  bvlid  condTtion,  and  the  time  limited  for  the  render- 
[ngTf  san?^  has  expired  and  was  not  extended,  in  writing  or 
otherwise,  by  the  defendant. 


562  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

(Illinois)  Flea 

1^8  That  if  fire  occurs  the  insured  shall  within days 

after  the  fire,  unless  such  time  is  extended  in  writing  by  the  coiii- 
pany,  render  a  statement  to  the  company,  signed  and  sworn  to  by 
said  insured,  stating  the  knowledge  and  belief  of  the  insured  as  to 
the  time  and  origin  of  the  fire;  the  interest  of  the  assured  and 
all  others  in  the  property;  the  cash  value  of  each  item  thereof, 
and  the  amount  of  loss  thereon;  all  incumbrances  thereon;  all 
other  insurance,  whether  valid  or  not,  covering  any  of  said 
property;  a  copy  of  all  the  descriptions  and  schedules  in  all 
policies;  any  changes  in  title,  use,  occupation,  location,  posses- 
sion, or  exposure  of  said  property  since  the  issuing  of  said  policy  ; 
by  whom  and  for  what  purpose,  any  building  described  in  said 
policy,  and  the  several  parts  thereof,  were  occupied  at  the  time 
of  the  fire;  and  said  policy  further  provides  that  no  suit  or 
action  thereon  for  the  recovery  of  any  claim  shall  be  sustainable 
in  any  court  of  law  or  equity  until  the  full  compliance  by  the 
assured  with  all  the  re(iuiremcnts  of  said  policy,  among  which 
requirements  is  the  one   reiiuiring  the   above  statement  to  be 

rendered  witiiin days  after  the  fire.    And  the  defendant 

avers  that  the  plaintiff  did  not  within   days  after  the 

alleged  fire  render  such  statement  to  this  defendant;  and  it 
further  avers  that  the  time  for  rendering  said  statement  was 
not  extended  in  writing  by  this  defendant.     (Pray  judgment) 

Replication 

That  true  it  is  that  he  did  not  render  to  said  company  the 

said  statement  in  said  plea  mentioned  within    days 

after  the  fire,  because  he  says  that  before  the  expira- 
tion   of    the    said     days    from    the    said    fire 

the  company  sent  its  adjuster  to  investigate  said  loss, 
and  that  the  said  adjuster  did  proceed  to  and  enter 
upon  the  adjustment  of  said  loss  with  the  plaintiff,  and  con- 
tinued in  an  effort  to  settle  and  adjust  such  loss  with  plain- 
tiff until  after  the  expiration  of  the  said days,  to  wit, 

on  the day  of ,  19 . . ,  and  that  there- 
upon the  said  defendant  requested  of  the  plaintiff  that 
he     furnish     defendant     such     proof     of    loss     as     mentioned 

in    said    plea    and    that    thereupon,    and    within     

days     thereafter,     to     wit,     upon     the     day 

of     ,     19..,     said     plaintiff     furnished     to     said 

defendant  in  pursuance  of  such  request,  such  proof  of  loss,  and 
that  then  and  there  the  said  defendant  received  and  accepted 
the  same  as  satisfactory  and  has  since  retained  the  same  with- 
out objection,  and  2iow  has  the  same;  wherefore  the  plaintiff 

198  Commence  as  in  Section   1151 
to  star. 


ASSUMPSIT  563 

avers  that  the  said  defendant  by  reason  thereof,  waived  the 
presentation  of  said  statement  within  the days  succeed- 
ing the  said  fire. 

(Maryland)  Plea 

And  for  a plea  to  the count  of  the  plain- 
tiff's declaration,  that  the  policy  of  insurance  sued  on  contained 
a  condition  requiring  the  insured,  within  sixty  days  after  the 
fire,  unless  such  time  is  extended  in  writing  by  the  company, 
the  defendant  herein,  to  render  a  statement  to  the  company 
signed  and  sworn  to  by  the  plaintiff,  stating  the  knowledge  and 
belief  of  the  insured,  the  plaintiff,  as  to  the  time  and  origin 
of  the  fire;  the  interest  of  the  insured  and  of  all  others  in  the 
property;  the  cash  value  of  each  item  thereof,  and  the  amount 
of  loss  thereon;  all  incumbrances  thereon;  all  other  insurance, 
whether  valid  or  not,  covering  any  of  said  property;  a  copy 
of  all  the  descriptions  and  schedules  in  all  policies ;  any  changes 
in  the  title,  use,  occupation,  location,  possession,  or  exposures 
of  said  property  since  the  issuing  of  this  policy  sued  on;  by 
whom  and  for  what  purpose  any  building  described  in  the  pol- 
icy sued  on,  and  the  several  parts  thereof,  were  occupied  at  the 
time  of  the  fire;  but  the  phiintiff  did  not,  within  sixty  days 
after  the  fire,  nor  did  anyone  in  his  behalf,  render  a  statement 
signed  and  sworn  to  by  him,  containing  the  things  as  above 
stated  required  to  be  therein,  nor  any  statement  whatsoever, 
and  the  said  time  of  sixty  days  was  not  extended  in  writing  by 
this  defendant,  and  the  rendering  of  such  statement  has  not 
been  waived  by  this  defendant,  or  by  anyone  in  its  behalf  author- 
ized so  to  do;  and  by  said  policy  the  rendering  of  said  proofs 
to  it  as  so  provided  for  was  made  a  condition  precedent  to  any 
suit  or  action  thereon,  and  the  amount  of  the  defendant's  lia- 
bility, if  any,  was  to  be  determined  from,  the  said  proofs  of  loss, 
and  said  amount  of  liability,  if  any,  was  to  be  payable  not  until 
sixty  days  after  the  defendant  had  received  satisfactory  proofs 
of  loss  as  herein  referred  to,  and  as  referred  to  in  said  policy. 

Replication 

1.  That  the  plaintiff  was  prevented  from  furnishing  and  fil- 
ing the  proofs  of  loss  or  statement  referred  to  in  said 

plea  by  the  acts  and  conduct  of  the  defendant  and  its  adjuster. 

2.  That  the  filing  of  the  proofs  of  loss  or  written  statement 

referred  to  in  said   plea  was  waived  by  the  acts 

and  conduct  of  the  defendant  and  its  adjuster. 

1162  Refusal,  reasons 

In  defending  an  action  on  a  policy,  the  insurance  company 
is  not  limited  by  the  reasons  assigned  in  its  refusal  to  pay,  if  the 


564  ANNOTATED   FORMS   OF   PLEADING   AND    PRACTICE 

plaintiff  has  not  been  misled  or  influenced  to  his  or  her  injury  by 
the  omission  or  failure  to  set  forth  other  reasons,  i'-*" 

1163  Suspension  of  policy,  plea  (Md.) 

That  it  does  not  owe  the  said  sum  of ($ ) 

dollars  or  any  part  thereof,  to  the  plaintiff,  because  one  of  the 
conditions  upon  which  the  said  defendant  insured  the  property 

of  the  plaintiff",  under  its  said  policy  No ,  as  will  appear 

by  reference  to  said  policy,  was  that  the  plaintiff  should  pay  in 
advance  the  annual  interest  on  a  certain  note  of  hand,  dated 

the    day  of    ,    .  . . . ,  referred  to  in 

the   plaintiff's  declaration,   said  payment   to   be   made   within 

days  after  the in ,  in 

each  and  every  year  while  the  policy  was  in  force ;  and  upon  the 
further  condition  that  in  default  of  such  payment  the  said 
policy  should  be  suspended  and  not  be  considered  as  binding 
on  the  defendant,  until  the  payment  of  said  interest  be  made 
by  the  plaintiff;  and  the  defendant  says  the  plaintiff  did  not 

pay,  within days  after  the in 

of  the  year  .  . . , ,  nor  has  he  at  any  time  paid,  the  said  annual 
interest  on  the  said  note  of  hand  for  the  year  .  . .  .  ;  by  reason 
of  which  the  said  policy  was  at  the  time  of  the  destruction  of 
the  said  insured  property,  suspended  and  not  binding  on  the 
defendant. 

Replication 

That  said  defendant  does  owe  the  said  sum  of 

($ )   dollars  or  any  part  thereof  to  the  plaintiff  because 

there  are  conditions  in  said  policy  No that  modify  the 

alleged  effect  of  the  one  condition  in  said  policy  referred  to  by 
the  defendant  in  said  plea,  as  will  appear  by  reference  to  said 
policy,  and  said  policy  never  was  suspended  and  always  was 
and  still  is  binding  on  the  defendant;  and  the  plaintiff  says 

that  he  or  his  agent  did  within   days  after  the 

day  of in  the  year  19 .  . ,  or  at  some 

time  did  pay  the  said  annual  interest  on  the  said  note  of  hand 
for  the  year  19 .  . ,  and  that  at  the  time  of  the  destruction 
of  the  said  insured  property  said  policy  was  not  suspended  and 
was  binding  on  the  defendant. 

1164  Unconditional  ownership,  plea  (111.) 

200  That  the  entire  policy  unless  otherwise  provided  by  agree- 
ment endorsed  thereon  or  added  thereto,  should  be  void  if  the 
interest  of  the  assured  be  other  than  unconditional  and  sole 

199  Weston  V.   State  Mutual  Life  200  Commence  as  in  Section   1151 

Assurance    Co.,    234    111.    492,    501       to  star. 
(1908). 


ASSUMPSIT  565 

ownership  in  the  property  covered  by  the  policy;  and  this  de- 
fendant avers  that  the  plaintiff  herein  was  not  the  sole  and  un- 
conditional owner  of  the  property  named  in  the  said  policy  at 
the  time  said  policy  was  issued  or  at  the  time  of  the  alleged 
loss;  and  it  further  avers  that  this  defendant  did  not  at  any 
time  by  agreement  endorse  upon  said  policy  or  add  thereto 
assent  to  the  said  policy  applying  to  a  less  interest  of  the  plain- 
tiff than  unconditional  and  sole  ownership.     (Pray  judgment) 

Replication 

That  at  the  time  of  issuing  the  said  policy  of  insurance,  and 
at  the  time  of  the  loss  thereunder,  as  aforesaid,  he  was  the  sole 
and  individual  owner  in  fee  simple  of  the  premises  on  which 
said  building  was  situated,  except  as  to  deed  of  trust  thereon 
then  known  to  the  defendant  as  being  thereon  and  recognized 
in  said  policy  of  insurance,  and  that  said  policy  was  so  issued 
to  the  plaintiff  by  the  defendant  then  knowing  that  said  trust 
deed  then  covered  said  premises  and  was  a  lien  thereon. 

Plea  h 

That  it  is  further  provided  in  said  policy  of  insurance,  set 
out  in  said  declaration,  among  other  things,  as  follows:  "This 
entire  policy,  unless  otherwise  provided,  by  agreement  endorsed 
hereon,  or  added  hereto,  shall  be  void  *  *  *  if  the  interest 
of  tiie  insured  be  other  than  unconditional  and  sole  ownership." 

And  the  said  defendant  avers  that  unknown  to  it  at  the  date 
of  the  issuance  of  the  policy  in  said  plaintiff's  declaration  men- 
tioned, the  ownership  of  the  said  defendant  in  and  to  the  prop- 
erty in  said  declaration  mentioned,  was  not  that  of  unconditional 
and  sole  ownership,  but  on  the  contrary  thereof,  the  ownership 
of  said  property  in  plaintiff's  declaration  mentioned,  at  the 
date  of  said  policy,  and  since,  was  and  is  encumbered,  in  and 
by  a  certain  instrument  in  writing  made  and  executed  and  de- 
livered by  said  plaintiff',  on,  to  wit, ,  between  said 

plaintiff  and  one ,  and  said  ownership  was  and  is 

thereby  liable  in  and  by  the  terms  of  said  instrument,  to  be 
changed  upon  the  happening  of  certain  events  and  upon  certain 
conditions;  and  defendant  avers  that  afterwards,  to  wit, 
,  said  took  possession  of  the  prem- 
ises and  property  in  said  policy  mentioned,  and  remained  in 
possession  thereof,  until  its  destruction  by  fire ;  by  reason 
whereof,  defendant  avers,  that  under  the  provisions  of  said 
policy  in  said  plaintiff's  declaration  set  forth,  said  policy  be- 
came void  and  said  plaintiff  has  no  cause  of  action  against  de- 
fendant under  said  policy,  for  the  loss  of  the  property  therein 
set  forth ;  all  of  which  defendant  is  ready  to  verify,  etc. 


566  ANNOTATED   FORMS   OP    PLEADING   AND   PRACTICE 

Replication 

That  at  the  date  of  the  issuance  of  the  said  policy,  in  the  said 
declaration  set  forth,  the  interest  of  the  said  plaintiff  in  the 
property  insured  was  that  of  unconditional  and  sole  ownership. 

(Maryland)  Pica 

And  for  a  plea  to  the   count  of 

the  plaintiff's  declaration,  that  the  policy  of  insurance  sued  on 
herein  contained  a  condition  as  follows: 

"This  entire  policy,  unless  otherwise  provided  by  agreement 

endorsed  hereon  or  added  hereto,  shall  be  void if 

the  interest  of  the  insured  be  other  than  unconditional  and  sole 

ownership." 

And  that  the  interest  of  the  insured  in  said  buildings  cov- 
ered by  said  policy  of  insurance  was  other  than  unconditional 
and  sole  ownership,  in  that  the  plaintiff  owned  the  property 

with  his  wife,    ,   as  joint   tenants,   or  tenants   in 

common,  or  tenants  by  the  entireties,  and  it  was  not  provided 
otherwise  by  any  agreement  endorsed  on  said  policy  or  added 
thereto,  and  the  defendant  has  not  waived  its  rights  hereunder, 
nor  has  any  one  authorized  so  to  do,  done  so  in  its  behalf. 

Replication 
That  the  defendant's  agent  who  secured  said  insurance  and 
wrote  said  policy  asked  no  questions  about  the  ownership  of 
the  property,  and  the  plaintiff  made  no  representation  about 
the  same.  That  while  it  is  true  that  the  ground  belongs  to  the 
plaintiff  and  his  wife  as  tenants  by  the  entireties  that  the  im- 
provements thereon,  the  houses,  were  erected  with  this  plaintitt"s 
money,  and  the  policy  contains  the  following  endorsement: 
' '  Loss  if  any  payable  to  assured  as  interest  may  appear. 

1165  Vacant  and  unoccupied,  plea  (111.) 

That  at  the  time  of  the  alleged  loss  by  fire  to  the  property  de- 
scribed in  the  policy  set  forth  in  the  declaration  herein,  the 
building  described  in  said  policy  was  vacant  and  unoccupied, 
and  so. remained  unoccupied  for days  prior  to  the 

alleged  loss. 

Replication 

That  the  policy  in  said  plea  mentioned,  as  set  out  in  said 
declaration,  shows  that  said  insurance  was  placed  on  an  ice 
house  of  the  plaintiff,  and  the  plaintiff  avers  that  the  said  de- 
fendant, when  it  issued  and  placed  said  policy  on  said  ice  house, 
understood  that  it  only  required  such  occupancy  of  said  build- 
ing as  pertained  to  the  ordinary  use  of  the  building  m  the 


ASSUMPSIT  567 

manner  and  for  the  purpose  for  which  it  was  designed  to  be 
used;  that  the  said  building,  when  destroyed  by  fire,  as  afore- 
said, was  used  as  an  ice  house,  and  that  it  was  occupied  in  such 
manner  as  pertained  to  the  ordinary  use  of  buildings  used  for 
ice  purposes,  and  as  the  same  by  the  intent  of  said  policy  was 
designed,  by  the  said  plaintiff  and  defendant  to  be  used  when 
said  policy  was  placed  thereon. 

(Maryland)  Plea 

And  for  a   plea  to  the   count  of 

the  plaintiff's  declaration,  the  defendant  says  that  the  policy 
of  insurance  sued  on  in  this  case  contained  a  condition  as  fol- 
lows: 

"This  entire  policy,  unless  otherwise  provided  by  agreement 
endorsed  hereon  or  added  hereto,  shall  be  void  *  *  *  if 
a  building  herein  described,  whether  intended  for  occupancy 
by  owner  or  tenant  be  or  become  vacant  or  unoccupied  and  so 
remain  for  ten  days." 

And  the  defendant  says  that  the  building  described  in  the 
policy  of  insurance  mentioned  in  the  plaintiff's  declaration  was 
a  dwelling  house  which  became  vacant  or  unoccupied,  and  so 
remained,  for  more  than  ten  days  prior  to  its  destruction  by 
fire,  and  said  building  was  vacant  or  unoccupied  at  the  time  of 
its  destruction  by  fire;  whereby  the  whole  policy  was  rendered 
void,  there  being  no  provision  to  the  contrary  by  agreement 
endorsed  on  or  added  to  the  policy. 

Beplication 

That  the  building  described  in  the  policy  of  insurance  men- 
tioned in  the  plaintiff's  declaration  did  not  become  vacant  or 
unoccupied  and  did  not  remain  so  for  more  than  ten  days  prior 
to  its  destruction  and  was  not  vacant  or  unoccupied  at  the  time 

of  its  destruction  by  fire  as  said  defendant  has  in  its 

plea  alleged. 

Plea  h 

And  for  a   plea  to  the   count  of 

the  plaintiff's  declaration  that  the  policy  of  insurance  sued  on 
by  the  plaintiff  herein  contained  a  condition  as  follows : 

"This  entire  policy,  unless  otherwise  provided  by  agreement 

endorsed  hereon  or  added  hereto,  shall  be  void    

if  the  building  herein  described  whether  intended  for  occu- 
pancy by  owner  or  tenant  be  or  become  vacant  or  unoccupied 
and  so  remain  for  ten  (10)  days." 

And  a  further  condition  as  follows: 

"And  warranted  by  the  assured  that  this  building  shall  be 
occupied  by  a  family  during  the  life  of  this  policy,  which  shaU 
not  be  construed  as  meaning  the  occupancy  of  an  apartment 


568  ANNOTATED   FORMS   OP   PLEADING   AND    PRACTICE 

or  apartments  by  a  man  or  men  and  which,  however,  shall  not 
prejudice  assured 's  right  to  the  ten  (10)  days'  vacancy  per- 
mitted by  the  conditions  of  this  policy." 

And  that  while  the  said  policy  was  in  force  the  buildings 
described  therein  were  vacant  and  unoccupied  and  remained  so 
for  more  than  ten  (10)  days  and  the  said  buildings  were  not 
occupied  by  a  family  or  families,  and  had  never  been  occupied 
by  a  family  or  families  as  required  by  said  clauses  in  said  pol- 
icy, and  it  was  not  provided  otherwise  by  any  agreement  en- 
dorsed on  said  policy  or  added  thereto,  and  the  defendant  has 
not  waived  its  rights  hereunder,  nor  has  any  one  authorized  so 
to  do,  done  so  in  its  behalf. 

Replication 

For  replication  to  the  plea,  the  plaintiff  says, 

that  the  houses  covered  by  the  policy  of  insurance  sued  on  in  his 
case  were  in  course  of  construction  at  the  time  the  policy  was 
issued;  that  the  defendant's  agent  saw  them  and  knew  it,  and 
there  was  no  misrepresentation  in  regard  thereto ;  and  that  the 
fire  occurred  before  they  were  completed  and  ready  for  occu- 
pancy, and  the  policy  contained  the  following  endorsement : 

"Permission  to  make  alterations,  additions,  completions  and 
repairs  and  this  policy  to  cover  materials  on  premises  for  mak- 
ing same." 

1166  Warranties,  pleading 

All  promissory  warranties  and  conditions  subsequent  are  mat- 
ters of  defense  which  must  be  pleaded  by  the  defendant  if  re- 
lied upon;  as  it  is  not  necessary  for  the  plaintiff  to  anticipate 
such  defenses  and  to  negative  them.^oi  An  iron  safe  clause 
in  a  policy  is  a  promissory  warranty  in  the  nature  of  a  condi- 
tion subsequent  within  the  meaning  of  the  foregoing  rule.202 


1167  Indemnity  bond  obtained  by  false  representations;  plea 
(111.) 

That  at  the  time  of  the  giving  by  said  defendants  to  said 

,  as  sheriff,  of  the  said  indemnity  undertaking  in 

said  count  mentioned,  it  was  represented  by  the  said^ , 

sheriff,  as  aforesaid,  to  the  defendants,  that  he,  the  said , 

as  sheriff  of  the  county  of   ,  in  the  territory  of 

,  had  by  virtue  of  a  certain  writ  of  attachment  for 

the  sum  of ,  issued  in  a  suit  then  pending  in  the 

201  Tillis   V.    Liverpool   &   London  202  Tillis   v.   Liverpool   &   London 

&  Globe  Ins.  Co.,  46  Fla.  278.  &  Globe  Ins.  Co.,  supra. 


ASSUMPSIT  569 

district  court  for  the  judicial  district  within  and 

for  the  said  county  of ,  territory  of , 

wherein  these  defendants  were  plaintiffs  and  the  said , 

co-partners  trading  as ,  were  defendants,  had  seized 

certain  personal  property,  dry-goods,  and  clothing,  of  about  the 

value  of ,  for  the  purpose  of  selling  the  same  and 

satisfying  said  debt,  and  that claimed  to  have  the 

right  of  possession  to  said  property  by  virtue  of  a  chattel  mort- 
gage thereon,  and  had  demanded  the  delivery  of  the  same  to 
him;  that  said  indemnity  undertaking  in  said  count  mentioned 

was  executed  and  delivered  by  the  defendants  to  said 

in  consideration  of  the  truth  of  such  statements,  and  for  the 
purpose  of  indemnifying  the  said  sheriff  from  loss  by  reason  of 
his  retaining  possession  of  such  personal  property,  dry-goods  and 
clothing,  and  selling  the  same  under  proceedings  in  said  suit 

against  said ,  and  paying  the  proceeds  of  such  sale 

over  to  the  defendants  in  satisfaction  of  their  said  debt. 

And  these  defendants  further  aver  that  the  said  statements 
and  representations  upon  which  the  delivery  of  said  indemnity 
undertaking  was  conditioned,  were  not  true  in  this,  that  said 

,  sheriff,  had  not  seized  and  did  not  have  in  his 

possession  certain  personal  property,  dry-goods  and  clothing  of 

the  value  of under  said  writ  of  attachment  issued 

in  favor  of  the  defendants,  but  on  the  contrary  did  have  in  his 
possession  certain  personal  property,  dry-goods  and  clothing  of 

the  value  of,  to  wit,   ,  seized  and  taken  possession 

of  by  the  said ,  as  sheriff,  under  a  writ  of  attach- 
ment in  favor  of and  against  said 

issued  out  of  said  district  court  for  the judicial 

district  within  and  for  the  county  of ,  and  territory 

of ;  nor  did  the  said ,  as  such  sheriff, 

sell  said  certain  personal  property,  dry-goods  and  clothing  rep- 
resented by  him  to  have  been  seized  and  in  his  possession  under 
the  writ  of  attachment  in  favor  of  the  defendants  and  against 

,  of  the  value  of  about ,  and  pay  the 

proceeds  of  the  same  to  the  defendants  in  satisfaction  of  their 

said  debt  against ,  although  such  proceedings  were 

had  in  said  suits  of  the  defendants  against  that 

the  defendants  obtained  judgment  against for  the 

amount  of  their  said  debt  and  judgment  sustaining  their  said 

attachment  writ  against  said   ,  but  wholly  failed 

so  to  do;  that  the  defendants  have  not  received  from  the  said 

,  sheriff,  or  from  anyone  in  his  behalf,  any  part 

or  portion  of  the  proceeds  of  any  sale  of  such  goods,  nor  has  any 

part  or  portion  of  their  said  claim  and  demand  against 

been  satisfied  by  the  said ,  sheriff,  by  virtue  of  such 

sale  and  such  application  of  the  proceeds  thereof  or  otherwise ; 

nor  did  said pay  any  judgment,  interests,  cost  or 

expenses  by  reason  of  retaining  possession  of  and  selling  any 


570  ANNOTATED  FORMS  OF   PLEADING  AND  PRACTICE 

goods  or  merchandise  under  proceedings  instituted  by  defend- 
ants wherein  said  supposed  indemnity  set  fortli  in  plaintiffs' 
amended count  was  given.     (Pray  judgment) 

Replication 

That  at  the  time  of  the  giving  by  the  said  defendants  to  said 

,  as  sheriff,  of  the  indemnity  undertaking  in  said 

count  of  said  declaration  mentioned,  it  was  not  rep- 
resented by  said ,  sheriff,  as  aforesaid,  to  the  defend- 
ants that  he,  the  said ,  as  sheriff,  by  virtue  of  a  writ  of 

attachment  issued  in  a  suit  then  pending  in  the  district  court  for 

the   judicial  district  within  and  for  said  county 

of   ,  territory  of   ,  wherein  the  said 

defendants  were  plaintiffs  and  said and , 

co-partners  trading  as ,  were  defentlants,  had  seized 

personal  property,  dry-goods  and  clothing  of  about  the  value 

of ;  that  the  said did  not  make  any 

untrue  statements  and  representations  upon  which  tiie  delivery 
of  said  indemnity  undertaking  was  conditioned ;  and  that  said 
,  sheriff,  as  aforesaid,  did  not  have  in  his  posses- 
sion certain  personal  property,  dry-goods  and  clothing  of  the 

value  of,  to  wit, ,  seized  and  taken  possession  of  by  said 

,  as  sheriff,  under  a  writ  of  attachment  in  favor 

of and  against ,  issued  out  of  said 

district  court  for  the judicial  district,  within  and 

for  the  county  of ,  territory  of ;  that 

said   ,  sheriff,  as  aforesaid,  did  pay  a  judgment, 

interest,  costs  and  expenses  by  reason  of  retaining  possession  of 
and  selling  the  goods  and  merchandise  seized  under  the  proceed- 
ings instituted  by  the  defendants  herein,  wherein  said  indemnity 
undertaking  set  forth  in  said count  of  the  declara- 
tion herein,  was  given. 

1168  Indemnity  bond  obtained  by  fraud;  plea  (111.) 

That  the  said  indemnity  undertaking  in  said  count  mentioned 

was  obtained  from  these  defendants  by  the  said , 

sheriff,  as  aforesaid,  by  fraud  and  circumvention,  that  is  to  say, 
colluding  and  conspiring  to  injure  and  defraud  these  defend- 
ants, before  the  execution  of  the  said  writing,  to  wit,  on  the 
day  of ,  . . . .,  in  the  county  afore- 
said, the  said   ,  sheriff,  as  aforesaid,   falsely  and 

fraudulently  then  and  there  represented  to  these  defendants  that 
he  then  held  and  had  in  his  possession  certain  dry-goods,  cloth- 
ing and  personal  property  of  about  the  value  of , 

under  and  by  virtue  of  a  certain  attachment  writ  issued  in  the 

case  of  these  defendants  against and , 

co-partners  trading  as ,  for  the  purpose  of  satisfy- 
ing the  debt  of  the  defendants  against  said    , 


ASSUMPSIT  571 

amounting  to  the  sum  of ,  and  that  the  said  goods 

were  then  claimed  by   under  and  by  virtue  of  a 

chattel  mortgage,  and  that  he  had  demanded  a  delivery  of  the 

said  goods  to  him,  the  said ,  and  that  he,  the  said 

,  sheriff,  should  deliver  the  same  to  said 

unless  the  defendants  should  execute  and  deliver  the  said  indem- 
nity undertaking  in  said  count  mentioned ;  and  these  defendants 
confiding  in  the  false  and  fraudulent  representations  aforesaid 

then  and  there  executed  and  delivered  to  the  said 

the  said  indemnity  undertaking,  conditioned  on  the  premises 
aforesaid  and  without  any  other  consideration  whatsoever. 

Defendants  further  aver  that  the  said  ,  sheriff, 

did  not  then  and  there  have  and  retain  possession  of  dry-goods, 

clothing  and  personal  property  of  about  the  value  of , 

but  did  have  in  his  i)ossession  and  had  levied  on,  contrary  to  the 
instructions  and  without  the  knowledge  or  consent  of  the  de- 
fendants, a  large  amount  of  property  greatly  in  excess  of  the 

value  of ,  and  pretended  to  hold  a  portion  thereof 

under  and  by  virtue  of  other  attachment  writs  in  his  possession, 
and  that  all  the  said  property  so  held  by  said  sheriff  as  afore- 
said, was  of  the  value  of,  to  wit, ,  which  said  sum 

was  more  than  sufficient  to  have  satisfied  in  full  the  debts  for 
which  attachment  proceedings  were  brought  and  the  said  claim 

of  said ;  but,  said  sheriff,  colluding  and  conniving 

with  the  said and  the  said ,  without 

the  knowledge  or  consent  of  said ,  did  release  and 

surrender  to  said an  amount  of  property  largely 

in  excess  of  the  amount  sufficient  to  satisfy  the  debt  of  the  de- 
fendants, to  wit,  the  amount  of  the  value  of ,  and 

did  thereafter  fail  and  refuse  to  satisfy  the  debt,  or  any  part 
thereof,  of  these  defendants,  from  the  proceeds  of  any  of  the 
goods  and  merchandise  retained  by  him  in  his  possession  as 
such  sheriff,  although  the  defendants  obtained  judgment  sus- 
taining their  attachment  for  the  amount  of  their  said  debt 
against (Pray  judgment). 

Replication 

That  said  indemnity  undertaking  in  said count 

mentioned  was  not  obtained  from  the  defendants  by  the  said 

,  sheriff,  as  aforesaid,  by  fraud  or  circumvention, 

and  that  he  did  not  collude  or  conspire  to  injure  and  defraud 
the  defendants  before  the  execution  of  said  writing,  to  wit,  on 

the  ,  19 .  .  ;  that  the  said  ,  sheriff,  as 

aforesaid,  did  not  make  any  false  and  fraudulent  representations 

to  the  said  defendants ;  that  the  said did  not  then 

and  there  levy  on  any  property  of  the  said  con- 
trary to  the  instructions  and  without  the  consent  of  the  defend- 
ants ;  that  the  said  ,  sheriff,  as  aforesaid,  did  not 

collude  and  connive  with  the  said   ,  and  that  the 


572  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

said  ,  sheriff  as  aforesaid,  did  not  unlawfully  re- 
lease and  surrender  any  property  to  said    with 

the  consent  of  said 

1169  Indemnity  bond,  sheriff's  failure  to  follow  instructions; 
plea  (111.) 

That  at  the  time  of  the  delivery  by  the defend- 
ants to  the  said ,  as  sheriff,  of  the  supposed  indem- 
nity undertaking  in  said  count  set  forth,  the  said , 

as  sheriff',  had  in  his  possession  a  stock  of  goods  consisting  of 
dry-goods,  clothing  and  sundries,  which  said  stock  of  merchan- 
dise the  said   ,  as  sheriff,  under  and  by  virtue  of 

the  laws  of  the  then  territory  of  ,  had  caused  to 

be  inventoried  and  appraised  at  the  sum  of,  to  wit, , 

and  said  merchandise  was  then  and  there  of  that  value ;  that 

said  stock  of  merchandise  which  the  said ,  as  such 

sheriff',  held  in  his  possession  at  the  time  of  the  giving  of  said 
indemnity  undertaking  in  said  count  mentioned,  had  been  pre- 
vious thereto,  and  on,  to  wit,  the seized  and  taken 

possession  of  by  the  said   ,  as  such  sheriff,  under 

and  by  virtue  of  writ  of  attachment  issued  out  of  the  district 

court  for  the   judicial  district  of  the  county  of 

,  in  the  territory  of   ,  in  favor  of 

against    ;  that  afterwards  and  on, 

to  wit,  the   ,  there  was  issued  out  of  said  district 

court  for  the judicial  district  within  and  for  the 

county  of  ,  in  the  territory  of  ,  an- 
other writ  of  attachment  for   in  favor  of  these 

defendants  and  against  the  said ,  which  said  writ 

was  also  delivered  to  the  said   ,  as  sheriff,  and  a 

levy  endorsed  thereon  on  certain  of  the  property  then  in  his 
possession  as  aforesaid. 

Defendants  further  aver  that  the  said  indemnity  undertaking 
in    said    count    mentioned    and    described    was    given    to    said 

,  as  sheriff,  solely  and  only  for  the  purpose  of 

indemnifying  the  said ,  as  sheriff,  from  such  claims, 

costs,  charges,  trouble  and  expense,  as  he  should  be  put  to  by 

reason  of  the  levy  upon  or  sale  of  about worth  of 

said  merchandise  so  in  his  possession,  which  he  was  then  and 
there  directed  to  separate  and  hold  as  security  for  the  payment 
of   the    attachment   writ   in   favor   of   the   defendants   against 

,  as  aforesaid,  and  to  discharge  and  release  and 

surrender  all  the  remainder  of  said  merchandise  from  any  claim, 
demand  or  lien  whatever  of  the  said  defendants  by  reason  of 
their  said  attachment  writ. 

Defendants  further  aver  that  the  said ,  as  sheriff, 

instead  of   setting   apart   merchandise  of  the   value   of   about 

,  as  directed  and  instructed,  to  secure  the  demand 

of  the  defendants  and  against ,  and  after  judgment 


ASSUMPSIT  573 

in  favor  of  the  defendants  and  against upon  said 

demand  which  was  afterwards  entered  in  said  court,  and  in- 
stead of  selling  the  goods  so  selected  and  paying  the  proceeds 

thereof  to  the  defendants,  the  said  ,  as  sheriff,  in 

violation  of  his  instructions  and  the  condition  upon  which  the 
said  undertaking  indemnity  was  executed  and  delivered  to  him, 
retained  in  his  possession  the  entire  stock  of  goods  and  mer- 
chandise so  seized  by  him  originally  under  the  writ  of  attach- 
ment in  favor  of and  sold  same  under  that  writ ; 

that  the  said  judgment  in  said  count  mentioned  as  having  been 

entered  in  favor  of and  against  the 

was  a  judgment  rendered  by  the  district  court  for  the 

judicial  district  within  and  for  the  county  of    , 

territory  of ,  for and  costs,  that 

being  the  amount  of  the  lien  claimed  by  the  said 

upon  said  stock  of  goods ;  that  said ,  as  such  sher- 
iff, violated  the  said  conditions  upon  which  said  undertaking 
of  indemnity  was  delivered  to  him,  by  the  defendants,  and  re- 
tained possession  of  the  entire  stock  of  goods  in  his  hands  of 
his  own  wrong  and  not  by  reason  of  said  indemnity  undertaking, 
and  did  not  account  to  or  pay  to  defendants  any  of  the  proceeds 
from  the  sale  thereof  by  him.     (Pray  judgment) 

Replication 

That  at  the  time  of  the  delivery  by  the  defendants  to  said 

,  as  sheriff,  of  the  indemnity  undertaking  in  the 

count  of  said  declaration  mentioned  and  set 

forth,  the  said    ,  as  sheriff,  did  not  have  in  his 

possession  a  stock  of  goods  which  the  said  sheriff  had  caused 

to  be  inventoried  and  appraised  at  the  sum  of,  to  v/it, ; 

nor  did  the  said ,  sheriff,  as  aforesaid,  have  in  his 

possession  any  stock  of  merchandise  on  the  date  aforesaid  of 

the  value  of  said  sum  of ;  nor  was  any  such  stock 

seized  by  the  said  sheriff,  as  aforesaid,  on  the day 

of ,  by  virtue  of  a  writ  of  attachment  issued  out 

of  the  district  court  for  the   judicial  district  of 

the  county  of ,  in  the  territory  of   , 

in  favor  of   and  against   ;  that  the 

said  indemnity  undertaking  in  said count  of  said 

declaration  mentioned  and  described  was  not  given  to  said 
,  as  sheriff,  solely  and  only  for  the  purpose  of  in- 
demnifying  said    ,   as   sheriff,   from   such   claims, 

costs,  charges,  troubles  and  expense  as  he  should  be  put  to  by 

reason  of  the  levy  upon  or  sale  of  about worth 

of  said  merchandise ;  that  said ,  sheriff,  as  afore- 
said, was  directed  by  the  defendants  to  levy  on  goods,  wares 
and  merchandise  to  an  amount  greatly  in  excess  of  said  sum  of 

,  to  wit,  the  sum  of ;  that  he  was  not 

then  and  there  directed  to  separate  and  hold  said  merchandise  so 


574  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

levied  upon  by  him  for  the  payment  of  the  attachment  writ  in 

favor  of  the  defendants  and  against ;  and  the  said 

,  sheriff,  as  aforesaid,  was  not  instructed  to  dis- 
charge, release  and  surrender  any  part  of  the  stock  of  said 

from  any  claim,  demand  or  lien  whatever  of  said 

defendants  by  reason  of  their  said  attachment  writ;  that  said 
,  as  sheriff,  as  aforesaid,  did  not  retain  in  his  pos- 
session the  entire  stock  of  goods  and  merchandise  of  said 
;  and  that  said  entire  stock  of  good.s  and  merchan- 
dise of  said was  not  seized  by  him,  said , 

as  sheriif,  as  aforesaid,  under  writ  of  attachment  in  favor  of 

;  and  that  said  as  such  sheriff,  did 

not  violate  the  conditions  upon  which  said  undertaking  of  in- 
demnity was  delivered  to  him. 

1170  Joint  liability;  denial,  plea  (111.) 

That  he  is  not,  nor  ever  was  jointly  liable  with  the  said 

.  •  •  in  respect  of  said  several  supposed  causes  of  action 

in  the  said  declaration  mentioned  or  either  of  them  in  manner 
or  form  as  the  plaintiff  has  above  in  that  behalf  alleged;  and  of 
this  he,  the  said ,  puts  himself  upon  the  country .^'^^ 

1171  Joint  liability  or  partnership;  denial,  plea  (111.) 

That  .  .he not,  or  ever  w partner. .  with, 

and  jointly  liable  with  the  said  (J  in  respect  of  the  said  cause 
of  action  in  the  said  declaration  mentioned  in  manner  and  form 
as  the  plaintiff.  .  ha.  .  above  in  that  behalf  alleged ;  and  of  this 
.  .he. .,  the  said  D,  put sel upon  the  country,  etc. 

(Venue) 

The  said  D,  defendant,  make.,  oath  and  say.,  that  the  last 
foregoing  plea  is  true  in  substance  and  in  fact. 

Subscribed,  etc. 

LIFE  INSURANCE 

1172  Beneficiary,  warranty 

The  statement  that  a  beneficiary  bears  a  certain  relation  to 
the  insured  is  not  a  warranty,  but  it  is  merely  a  direction  for 
the  payment  of  the  insurance  money.^o* 

1173  Deductions 

An  insurer  has  no  right  to  deduct  a  general  indebtedness  of 
the  insured  from  a  policy  which  provides  that  "any  indebted- 
ness to  the  company  will  be  deducted  in  any  settlement,"  as  the 

203  Add  verification. 
204Cuiiat    V.    Ben    Hur,    249    HI. 
448,  450  (1911). 


ASSUMPSIT  575 

indebtedness  which  is  deductible  under  the  provision  is  that 
which  arises  by  virtue  of  the  terms  of  the  policy  itself.^os 

1174  Execution  of  assured 

The  execution  of  the  assured  for  crime  is  no  defense  against 
an  action  by  his  legal  representative,  upon  a  life  insurance  pol- 
icy held  by  the  person  executed,  in  the  absence  of  a  stipulation 
exempting  the  company  from  liability  for  a  death  from  this 
cause.-"® 

1175  False  representations,  generally 

To  avoid  a  contract  of  insurance  on  the  ground  of  false  swear- 
ing to  a  statement,  the  statement  must  have  been  made  know- 
ingly and  intentionally  with  the  knowledge  of  its  untruthful- 
ness, or  it  must  have  been  so  stated  as  a  truth  when  the  party 
did  not  know  it  to  be  true  and  had  no  reasonable  grounds  for 
believing  it  to  be  true  and  must  have  been  made  with  the  pur- 
pose to  defraud.2"^ 

1176  False  representations,  plea  (111.) 

That  prior  to  the  making  of  the  policy  referred  to  in  the 

declaration,  and  as  an  inducement  thereto,  said   

made  to  said  defendant,  his  application  for  insurance  in  writing, 
a  copy  of  which  application  is  appended  to  said  policy,  and  the 
defendant  refers  to  the  copy  of  said  application  annexed  to  the 
plaintiff's  declaration  herein,  and  by  express  reference  makes 
it  a  part  of  this  plea. 

Defendant  further  avers  that  the  statements  in  said  appli- 
cation were  false  in  this,  that  said   had  suffered 

at  divers  times  preceding  the  making  of  said  application,  from 

and  other  serious  ailments,  which  fact  was  then 

and  there  known  to  said   

Defendant  further  avers  that  it  relied  upon  the  statements 
in  said  application  for  insurance  and  was  induced  thereby  to 
issue  said  policy ;  by  reason  whereof  defendant  says  said  policy 
became  and  was  null  and  void.     (Pray  judgment) 

RcplicaHon 

That  the  said  statements  in  the  said  application  in  said  plea 

mentioned  were  fairly  and  honestly  made  by  the  said , 

according  to  his  best  knowledge  and  belief  and  were  true  in 

205  Anson  v.  New  York  Life  Ins.  207  German  Union  Fire  Ins.  Co. 
Co.,  252  111.  369,  372   (1911).                 V.  Cohen,  114  Md.  130,  137  (1910). 

206  Collins    V.    Metropolitan    Life 
Ins.  Co.,  232  111.  37,  48   (1908). 


576  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

fact  and  were  not  false  or  untrue  and  were  not  known  to  the 

said    to  be   false  or  untrue  and  were  not   relied 

upon  })y  the  said  defendant  as  in  said  plea  of  the  said  defend- 
ant mentioned  in  manner  and  form,  etc. 

(Maryland)  Pica 

(Precede  this  by  general  issue  and  proper  commencement.) 

That    ,  the  insured,  induced  the  defendant   to 

issue  the  policy  which  is  the  cause  of  action  in  this  case  by 
falsely  and  fraudulently  representing  at  the  time  of  his  appli- 
cation therefor  that  he  was  in  good  health,  when  in  truth  and 
in  fact  he  was  not  then,  nor  wlien  the  policy  was  issued  in  good 
health,  but  was  at  those  times,  as  well  as  for  some  time  pi-ior 

thereto  afflicted  with disease,  a  disease  which  tends 

to  shorten  human  life. 

And  for  a plea  says : 

That  the  said made  other  false  and  fraudulent 

representations  in  the  written  application  made  by  him  as  an 
inducement  to  issue  the  policy  wiiich  is  the  cause  of  action  in 
this  case,  which  representations  were  matters  material  to  the 
risk  assumed  by  the  defendant  in  issuing  said  policy. 

(Virginia)  Plea 

That  at  and  before  the  time  of  delivery  of  the  policy  sued 
upon,  it  was  understood  and  agreed  between  the  insured,  and 
the  defendant  in  a  certain  contract  in  writing,  called  applica- 
tion, signed  by  the  insured,  that  the  statements  and  answers 
contained  in  said  application  were  correct  and  wholly  true,  and 
that  they  formed  a  basis  of  the  contract  of  insurance,  and  that 
if  they  were  not  correct  and  wholly  true  the  policy  should  be 
null  and  void.  And  the  defendant  says  that  the  applicant  did 
fraudulently  and  knowingly  make  a  false  statement  in  said 
application  in  this,  to  wit,  that  he  was  then  in  sound  health,  and 
that  he  had  no  physical  or  mental  defect  or  infirmity  of  any 
kind.  And  the  said  defendant  says  that  the  said  statement  was 
wilfully  false  and  was  fraudulently  made  in  this,  that  the  said 
applicant  had  at  that  time  and  prior  to  hereto  been  afflicted  with 
a  disease  of  the  kidneys  and  had  been  treated  therefor ;  that  the 
said  statement  was  material  and  caused  the  company  to  issue 
the  policy  sued  upon,  and  that  but  for  such  statement  the  policy 
would  not  have  been  issued ;  and  the  defendant  had  no  knowl- 
edge of  the  falsity  of  said  statement. 

And  the  said  defendant  is  ready  to  verify. 

(Venue) 

I,   ,  a  notary  public  in  and  for  the  corporation 

aforesaid,  in  the  state  of  ,  do  hereby  certify  that 

,  superintendent  of    ,  the  defendant 


ASSUMPSIT  ^*' 


in  the  above  styled  suit,  appeared  before  me  m  my  corporation 
and  sta?e  aforesaid  and  made  oath  that  the  statements  contained 
herein  are  true  to  the  best  of  his  knowledge  and  belief. 
Given,  etc, 

1177  Forfeiture,  waiver 

A  cause  of  which  the  insurer  had  knowledge  at  the  time  the 
policy  was  issued  cannot  be  made  the  basis  of  a  forfeiture  of 
the  policv  after  it  had  been  issued.^o«  The  acceptance  of  pay- 
ment of  a  premium  after  it  has  become  due  waives  the  insurer  s 
ric^ht  to  insist  upon  a  forfeiture  of  the  policy  for  failure  to  pay 
pr^omptly,  and  restores  the  parties  to  the  contract  as  it  was  orig- 
inally made  without  creating  a  new  contract  between  them. 
This  is  the  rule  in  Georgia,  Illinois  and  Iowa,  but  not  m  New 
York  and  Tennessee.-"^-  A  forfeiture  of  a  policy  may  be  pleaded 
in  an  action  thereon,  although  there  is  no  declaration  of  forfeit- 
ure  as  no  notice  of  forfeiture  is  required  to  be  given.^io 

A  tender,  under  a  denial  of  all  liability,  of  all  unearned  pre- 
mium does  not  invalidate  the  tender,  but  the  insured  is  bound 
to  accept  such  a  part  of  the  tender  as  the  insurer  can  lawfully 

An  insurance  company  does  not  waive  its  right  to  insist  upon 
a  forfeiture  of  the  policy  for  a  breach  of  a  condition  in  it  by  the 
mere  failure  to  return  the  unearned  premium  after  the  forfeit- 
ure has  occurred,  unless  a  demand  is  made  upon  the  insurance 
company  for  a  return  of  such  premium  and  the  insured  has  of- 
fered, at  the  same  time,  to  surrender  the  policy.^i^ 

1178  Good  standing 

In  an  action  on  a  certificate  of  life  or  accident  insurance  under 
the^a^ses^ment  plan,  the  question  ^^-^^^'"^.^^^^^^^^^ 
good  standing  in  the  original  company  at  ^^e  time  of  a  transter 
or  in  the  transferee  company  at  the  time  of  his  death,  is  a 
matter  of  defense.^i^ 

=os  Peterson    v.    Manhattan    Life  So     162;    45  So.    835    (Miss.    1907, 

Ins.  Co.,  244  111.  329    341  (1910 ^  1^08^  ^^    ^    ^^^^^^^   ^^ 

209Monahan    v.    Fidelity    Mutual  ac 

Life    Ins.    Co.,    242    111.     488,     493  So^^l|2.^^  ^^       ^^^^^^^      ^^^^^^ 

^^^i^ose  V.  Mutual  Life  Ins.  Co.,       Fund  U,,  ^,3,.,  224  111.  576,  578 
240  111.  45,  54    (1909).  (1907). 

211  Aetna   Ins.   Co.   v.   Mount,   44 


578  ANNOTATED  FORMS  OF  PLEADING   AND   PRACTICE 

1179  Incontestability 

A  policy  is  incontestable  from  the  date  of  its  issuance  under  a 
provision  declaring  the  policy  incontestable  from  the  date  thereof 
and  a  later  clause  providing  that  the  policy  shall  not  he  in 
force  until  actual  payment  of  the  initial  premium  and  the  de- 
livery of  the  policy.  This  is  so  on  the  principle  that  between 
two  conflicting  provisions  that  construction  of  them  will  l)e 
adopted  which  is  more  favorable  to  the  insured.-^* 

1180  Limitation,  plea  (111.) 

That  it,  the  said  defendant,  is  a  voluntary,  mutual  a.ssocia- 
tion  organized  under  that  certain  law  of  the  state  of  Illinois, 
approved  on  the  day  of ,  10 .  . ,  en- 
titled: "An  act  to  provide  for  the  organization  and  manage- 
ment of  corporations,  associations  or  societies  for  the  purpose  of 
furnishing  life  indemnity  or  pecuniary  benefits  to  the  beneficiar- 
ies of  deceased  members,  or  accident  or  permanent  disal)ility  in- 
demnity to  members  thereof;"  that  the  members  of  said  associa- 
tion receive  no  money  as  profits,  and  the  funds  for  the  payment  of 
all  benefi^:s  and  indemnities  promised  and  paid  by  said  associa- 
tion are  raised  entirely  by  assessment  upon  the  surviving  mem- 
bers; that  said  association  has  no  authority  to  insure  any  person 
or  to  promise  any  benefit  or  indemnity  to  any  person  not  a 
member  of  said  association ;  that  said  association  is  by  law  and 
its  charter  authorized  to  issue,  and  does  issue  to  its  members 
only,  certificates  entitling  its  said  members  to  receive  benefits 
in  case  of  certain  accidents  only,  and  upon  certain  conditions 
only;  that  by  the  acceptance  of  such  certificates  and  the  pay- 
ment therefor  of  the  sum  or  sums  reijuired  by  said  a.ssociation, 
the  party  so  accepting  said  certificate  and  paying  said  sum  or 
sums  becomes  and  is  a  member  of  said  association,  and  subject 
to  all  the  rules  and  regulations  lawfully  governing  the  members 
of  said  association;  that  for  the  purpose  of  defining  said  acci- 
dents and  fixing  said  conditions  and  otherwise  regulating  and 
prescribing  the  business  of  said  association,  and  the  relations  of 
its  said  members  to  said  association  and  to  each  other,  the  said 
members  of  said  association  have  duly  adopted  certain  rules, 
limiting  and  defining  the  accidents  for  which  indemnity  pay- 
ments shall  be  made  by  said  association,  and  assessments  levied 
upon  its  said  members,  and  fixing  the  conditions  upon  which 
said  payments  shall  be  made,  and  otherwise  regulating  and  pre- 
scribing the  business  of  said  association  and  the  relations  of 
its  said  members  to  said  association  and  to  each  other,  which 
said  rules  so  adopted  by  the  members  of  said  association  are 

21*  Monahan  v.  Fidelity  Mutual 
Life  Ins.  Co.,  242  111.  488,  492 
(1909). 


ASSUMPSIT  579 


known  as  the  by-laws  of  said  association;  that  in  and  by  said 
bvTaws  so  adopted  by  the  members  of  said  association  as  afore- 
saiil!  it  is  prov^ed  as  follows,  to  wit:  (Set  out  by-law  restrict- 
me'  the  commencement  of  suits).  . -,  ,     i        i,      •  u„ 

And  the  said  defendant  avers  that  the  said  by-law  herembe- 
forl  set  out  was  duly  adopted  by  the  members  ot  said  associa- 
tion on  or  before  the day  of  .....  •• ,  i^-  - 

and  is  and  has  been  ever  since  said day  oi  .  . . . ....  -^ , 

19        and  particularly   on,   to  wit,  the    /•;•;•.•    ?/    a 

.'.'.. .  .  .,  19.  .,  in  full  force  and  effect.  And  this  defend- 
ant avers  that  on,  to  wit,  the day  of  ......  • • . 

19       ?he  said  F  made  his  application  for  membership  in  said 
accident  association  in  words  and  figures  as  follows,  to  wit. 

•'lUtuTStnl- avers  that  said  F  signed  said  application 
and  caused  the  sanie  to  be  delivered  to  the  said  cl^eteiida^^^^^^^^ 

on  said'  ■ '  ■  :;■.■.*.■. . .  .day  of*  ::::'.'* ,  19. .,  the  said  de- 

fendant,  in  consideration  of  the  warranties  and  agreements  con- 
tained n  said  application,  issued  to  said  F  its  certihcate  of 
membership  in  slid  association,  in  and  by  which  certificate  it 
v-a  provided  as  follows,  to  wit:  (set  forth  certificate)  ;  and 
said  defendant  then  and  there  thereby  received  the  said  F  into 
membersMp  in  said  association,  and  the  said  F  thereby  became 
a  Tember  of  said  association  and  entitled  to  all  the  rights  and 
bench"  and  subject  lo  all  the  duties,  obligations  and  liabilities 
of  members  of  said  association.  In  and  by  said  certificate  it 
w^s  f^Jther  provided  as  follows,  to  wit:  (Set  out  provisionV. 
And  saic  defendant  avers  that  said  certificate,  together  with 
i^d  app  ication  and  said  by-laws,  is  the  only  certificate  ever 
iiued  by  said  defendant  to  said  F,  and  is  the  only  policy  of 
insurance  or  contract  of  any  sort  ever  entered  mo  by  said  de- 
fendant with  said  F;  and  said  defendant  avers  that  said  con- 
tract was  made  and  said  certificate  was  so  issued  and  said  F 

bpoame  a  member  on  said day  ot ■,       •  ; » 

and  whil  said  bv-law  above  set  out  was  in  full  force  and  effect. 

And  said  defendant  avers  that  on,  to  wit.  the •  .  •  • 

,^"^  19.  .,  it,  the  said  defendant,  duly  and  ex- 

plicitly 'refused 'to  entertain  the  claim  of  said  plaintiff,  and 
on  sa^  date  last  before  mentioned,  duly  notified  said  plaintiff 
?hat  U  the  said  defendant,  refused  to  entertain  the  said  claim 
of  said  plaintiff.  And  said  defendant  avers  that  the  said  pa  ntiff 
did  not  commence  her  said  suit  against  it,  the  said  defend- 
ant within  thirtv  days  of  said  date  of  said  refusal  as  aforesaid, 
but  not  until,  to  wit,  ^^  ' --,- ^J^J ^^ ,,-a  re^^ei 
as  aforesaid  'inmanner  and  form  as  the  plaintiff  has  above  com- 
p  ained Tgainst  it,  the  defendant;  and  this  the  defendam  ^ 
readv  to  verifv,  wherefore  it  prays  judgment  if  the  plaintiff 
ought  to  have  her  aforesaid  action  against  it,  etc. 


580  ANNOTATED   FORMS   OF   PLEADING    AND   PRACTICE 

Replication 

And  the  plaintiff  as  to  the  special  plea  of  the  defendant  by  it 
secondly  above  pleaded  says  that  there  never  was  any  such  by- 
law in  force  or  effect  as  stated  by  the  said  defendant  in  the 
said  plea.  And  that  said  defendant  did  not  reject  the  claim  of 
said  plaintiff  and  refuse  to  pay  the  same  as  stated  in  defend- 
ant's said  plea;  and  of  this  the  plaintiff'  puts  herself  on  the 
country. 

b 

And  for  a  further  special  reply  the  plaintiff  says  that  she, 
by  reason  of  anything  in  that  plea  alleged,  ought  not  to  be 
barred  from  having  her  aforesaid  action,  because,  she  avers,  if 
ever  there  was  any  such  by-law  as  stated  in  the  said  amended 
plea,  she  was  prevented  by  the  fraud  and  false  representations 
of  the  defendant  by  its  servants  from  bringing  her  action  within 
the  time  prescribed  by  the  said  alleged  by-law,  as  stated  in  the 
said  plea,  and  she  was  also  prevented  by  the  fraud,  covin  and 
concealment  of  the  defendant  from  obtaining  any  knowledge 
of  the  said  alleged  by-law.  That  is  to  say,  that  before  the  com- 
mencement of  this  suit,  to  wit,  the of 

19.  .,  the  plaintiff  went  to  the  office  of  the  said  defendant  and 
requested  the  said  defendant  to  furnish  her  with  blank  forms 
to  make  proof  of  loss  and  also  with  a  copy  of  the  by-laws;  but 
this  the  defendant  refused  to  do.  And  the  defendant  then  and 
there  by  its  servant,  with  the  intention  of  deceiving  the  plain- 
tiff, falsely  and  fraudulently  stated  to  the  plaintiff  that  she 
had  three  months  from  the  date  of  the  death  of  said  F  to  bring 
suit.  And  the  plaintiff  avers  that  she  never  saw  any  by-law  of 
the  said  defendant  until  long  after  this  action  was  commenced. 
And  she  further  avers  that  she  believed  the  statement  of  the 
defendant,  wherein  it  stated  by  its  servant  that  she  had  three 
months  to  bring  her  suit,  and  relying  on  this  statement,  she 

brought  her  suit  on  the day  of ,  19 .  . , 

as  stated  in  said  plea,  and  which  was  within  three  months  of 
the  death  of  the  said  F.  And  the  plaintiff  further  says  that 
the  statement  of  the  defendant  was  falsely  and  fraudulently 
made,  and  made  for  the  purpose  of  deceiving  her  and  that  it 
did  deceive  her.     (Pray  judgment) 

1181  Medical  attention,  plea  (Md.) 

And  for  a plea,  that  the  plaintiff,  in  his  appli- 
cation for  the  issuance  of  the  policy  of  insurance  mentioned  in 
the  declaration,  made  the  statement  that  he  had  not  received 
medical  attention  within  two  years  preceding  the  making  of 
said  application,  which  said  statement  said  plaintiff  warranted 
to  be  true,  and  which  said  statement  was  expressly  made  a  part 
of  the  contract  of  insurance  and  was  relied  on  by  the  defendant ; 


ASSUMPSIT  581 


whereas,  in  fact,  the  said  plaintiff  had  received  medical  atten- 
tion within  two  years  preceding  the  making  of  said  apphcation, 
as  he  well  knew  And  this  defendant  further  says  that  these 
facts  constitute  a  breach  of  warranty  as  to  a  matter  material 
to  the  risk  and  avoid  the  policy. 

Replication 

That  he  had  not  received  medical  attention  within  two  years 
preceding  the  making  of  said  application,  and  that  he  had  made 
no  statement  in  his  application  for  the  issue  of  the  policy  ot 
insurance  mentioned  in  the  declaration  which  would  constitute 
a  breach  of  warranty  as  to  a  matter  material  to  the  risk  and 
in  avoidance  of  the  policy. 

Rejoinder 


The  defendant,  the of •  • , 

for  rejoinder  to  the  plaintiff's  replications  to  the 

and  pleas,  says : 

That  it  joins  issue  on  the  same. 

1182  Murder  of  insured,  plea  (111.) 

That  the  plaintiff,  A,  was  the  son  and  beneficiary  of  B,  de- 
ceased the  insured,  in  the  beneficiary  certificate  issued  by  the 
defendant  upon  the  life  of  the  said  B,  and  that  on,  to  wit,  the 

day  of , ,  at,  to  wit,  the  county 

of .  and  state  of ,  the  plaintiff.  A,  killed 

and  murdered  the  insured,  B,  by  reason  of  which  the  said  plain- 
tiff then  and  there  forfeited  and  lost  all  rights  as  a  beneficiary 
under  the  beneficiary  certificate  described  in  said  plaintiffs 
declaration.     (Pray  judgment) 

Replication 

That  the  said  A,  the  son  and  beneficiary  of  B,  deceased,  did 

not  murder  the  said  B  on  the day  of  . . . . ... . .  .  • ., 

19   . ,  but  avers  that  the  said  A  did  kill  the  said  B  on  that  day 
while  he,  the  said  A,  was  insane. 

1183  Occupation  different,  plea  (HI.) 

That  the  alleged  bodily  injuries  from  which  the  said  J  died 
were  received  while  he,  said  J,  was  engaged  in  an  occupation  or 
exposure  classed  by  the  defendant  at  the  date  of  the  policy  of 
insurance  set  forth  in  said  ^  count  of  said  declara- 
tion hi-her  than  the  premium  paid  for  the  said  policy  of  insur- 
ance to  wit,  the  occupation  of  a  weaver,  which  occupation  was, 
at  the  date  of  said  policy,  classed  by  this  defendant  as  ordinary, 

and  the  annual  premium  for  which  was,  to  wit, •  •  •  • 

dollars  per  thousand  dollars  of  insurance.    (Pray  judgment; 


582  ANNOTATED    FORMS   OF    PLf^ADING    AND    PRACTICE 

lieplication 

That  the  bodily  injuries  from  which  the  said   

died,  as  set  fortli  in  tlie  (first,  second,  etc.)  counts  of  the  plain- 

tiif 's  declaration  were  not  received  while  the  said 

was  engaged  in  tlie  occupation  of  a  weaver  or  in  an  occupation 
or  exposure  classed  by  the  defendant  at  the  date  of  the  policy 
of  insurance  set  forth  in  said  (first,  second,  etc.)  counts  of  the 
phiiutiff's  declaration  higher  than  the  premium  paid  for  the 
policy  of  insurance,  as  the  defendant  has  above  in  its  said  plea 
alleged.     (Conclude  to  the  country) 

1184  Suicide 

No  recovery  can  be  had  under  a  life  insurance  policy  which 
invalidates  the  instrument  upon  the  insured's  dying  by  his  own 
hand,  whether  sane  or  insane,  and  the  action  is  for  insurance 
upon  the  person  thus  insured  and  dying.  In  such  a  case  the 
degree  of  insanity  is  unimportant.^^^ 

1185  Suicide,  plea  (111.) 

That  the  alleged  bodily  injuries  from  which  the  said  J  died 
were   intentionally   inHicted   upon   himself  in   violation  of  the 

terms  of  the  said  policy  of  insurance  as  set  forth  in  the 

count  of  said  declaration.     (Pray  judgment) 

Replication 

That  the  bodily  injuries  from  which  the  said    

died,  as  set  forth  in  the  (first,  second,  etc.)  counts  of  said  decla- 
ration, were  not  intentionally  inflicted  upon  himself  in  violation 
of  the  terms  of  said  policy  of  insurance,  as  the  defendant  has 
above  in  its  said  plea  alleged.     (Conclude  to  the  country) 

1186  Ultra  vires,  plea  (111.) 

That  it  is,  and  was  on  and  prior  to  the day  of 

,  19.  .,  a  fraternal  beneficiary  order  or  society  in- 
corporated by  and  under  the  laws  of  the  state  of , 

and  was  on  and  prior  to  said  date  doing  business  as  such  fra- 
ternal beneficiary  order  and  society;  that  it  had  at  all  times 
since  its  said  incorporation  and  has  now  a  lodge  system  with 
ritualistic  form  of  work  and  representative  form  of  government, 
and  is  an  association  formed,  organized  and  carried  on  for  the 
sole  benefit  of  its  members  and  their  beneficiaries  and  not  for 
profit. 

215  Seitzinger    v.    Modern    Wood- 
men, 204  111.  58,  68   (1903). 


ASSUMPSIT  ^^3 


Said  defendant  further  alleges  that  on,  to  wit,  the 

dav  of        ,  19-  -  at,  to  wit,  the  county  of  . .....  •  •  •  •  -, 

Zd  state  of  .    . . . ,  E,  who  is  described  in  plamtilf  's  dec  a- 

?ation  as  the  'f^ih^r  of  the  plaintiffs,  made  and  delivered  to  de- 
fendant a  partlv  printed  and  partly  written  application  signed 
lenaani  '^P^''^\y^  „„„i:„„+i^„  .a\A  v.  nnnliod  tor  membership 


fpTiHflnt  a  oartlv  priniea  auu  pam^    », iit.v,xx  ^^,1. ^ 

bv  Umsetf  in  which  application  said  E  applied  for  .nembersh.p 
in  Home  Tr.bunal  No.*^ ....  of  the  defendant  order  and  for 
benefits  therein  to  the  amount  of  $ m  c  ass  A  That  de- 
fendant, at  the  time  said  application  was  made  to  it  as  a^tore 

:r^^1r;;e;n:^™efieiary•o;ganiza1?L°orsociVty•i•neoVporated 
wds  a  xia  ,in  na  hnsmess  as  such,  and 


ITiVT^Zo  ^^'.^^.r:::;dd;;i;g  business  as  such,  and 
?Ln  and^here  had  authority  to  receive  aPPl;-;^^/^^---,^^^ 
and  to  insure  them  and  their  lives  by  graiiting  to  the"i  bene 

fioiarv  certificates     That  Home  Tribunal  No ^^as  a  local 

foTge  or  trfbuna  of  the  defendant  Supreme  Tribunal  and  as 
inch  local  tribunal  received  the  said  application  of  the  said  E 
and  theieupon  caused  the  said  E  to  be  examined  by  the  medical 
Saminer  o'f  said  Home  Tribunal,  which  it  was  its  duty  o  do 
A  coDV  of  said  application  made  by  said  E  is  attacliecl  to  ae 
fendant's  pleas  marked  exhibit  "A,"  and  made  a  part  ot  this 

^^Defendant  alleges  that  said  E  in  his  said  application  among 

other  things  stated  that  he  was  born  on  the  .  . . aay  ot 

. .    .  .,  in  the  year  19.  .,  and  that  he  was     ... . . . .  >ears 

old  at  his  nearest  birthdav  and  that  he  warranted  the  truthtul- 
ness  of  the  statements  in  his  said  application  and  consented  and 
a'  'cd  latanv  untrue  or  fraudulent  statement  made  therein 
shiu  d  forfeirall  the  rights  of  himself  and  his  family  or  depend- 
ed in  albnelits  and  privileges  of  said  membership;  reterenee 
?o  sa  d  application  marked  exhibit  "A,"  being  hereby  made  for 
Ireater  certainty  as  to  the  statements  made  by  sad  E  in  his 
Lid  aDDlication  to  said  Home  Tribunal  as  aforesaid.  . 

n.Sant  further  alleges  that  said  Home  Tribunal  received 
said  E  intfme'Sdp  in  said  Home  Tribunal  and  forwarded 
his  said  appHcation  to  the  defendant  Supreme  Tribunal  as  it 
^4sTts  duU  to  do;  and  said  Supreme  Tribunal  thereupon,  hav- 
nc.  full  a  h  and  Jonfidence  in  the  truth  of  the  statements  made 
bv  sa^d  E  in  his  said  application  as  to  his  age,  issued  and  caused 
to  be  deUvered  to  him  a  beneficiary  certificate  in  the  defendant 
to  De  ^^"7;;"  ,.  ^  ^^-hich  cert  ficate  was  afterwards 

stt'eVd'ed    bv    aid  E  io  defendant  and  the  beneficiary  certif- 
surrenaerea    uy  delivered  to  said  E  in  the 

■ptcVa":'  Z:i  IhLoTbrr^eement  between  the  said  E  and 

'"Deftdanf  alleges  that  said  E,  when  he  made  said  applica- 
tion,  to  wit,  on  the  said day  ol Vears'of  age 


584  ANNOTATED   FORMS   OF   PLEADING    AND    PRACTICE 

By  reason  of  which  false  and  untrue  statement  of  the  date  of 
his  birth  and  age  the  said  E  forfeited  all  rights  of  himself  and 
his  family  in  said  last  named  beneficiary  certificate,  as  well 
as  in  said  first  beneficiary  certificate.  Defendant  further  alleges 
that  said  E  well  knew  when  he  made  said  statement  in  his  said 

application  that  he  was  not  born  on  the   day  of 

,  19  •  • ,  and  that  his  age  was  not years 

at  his  nearest  birthday,  and  that  said  statement  was  false  and 
untrue;  and  defendant  further  alleges  that  said  E  made  said 
false  statement  for  the  purpose  of  defrauding  and  deceiving  this 
defendant  by  causing  it  to  issue  to  him  the  beneficiary  certifi- 
cate sued  on  in  this  case     And  defendant  further  alleges  that 

it  had  no  knowledge  that  said  E  was  more  than  

years  old  when  he  made  said  application  until  since  the  death 
of  the  said  E. 

Defendant  therefore  avers  that  said  beneficiary  certificate  sued 
on  in  this  case  is  void  and  not  binding  on  this  defendant.  (Pray 
judgment)  ^lo 


1187  Loss  of  goods,  express  company;  validity  of  statute 

Clause  10,  section  1294c  of  the  Virginia  statutes  regulating 
common  carriers  is  not  in  conflict  with  the  Federal  laws  con- 
cerning commerce.2^^ 

1188  Non-performance,  plea  (Md.) 

And  for  their plea,  the  defendants  say  that  the 

plaintiff  has  not  fulfilled  all  the  terms  of  the  agreement  between 
the  plaintiff  and  the  defendants  on  his  part  to  be  fulfilled,  and 
has  not  always  held  himself  ready  and  willing  to  perform  all 
of  the  terms  of  the  agreement  aforesaid,  and  that  the  defend- 
ants have  not  wrongfully  refused  and  still  refuse  to  pay  to  the 
plaintiff  the  sums  due  him  by  reason  of  the  agreement  afore 
mentioned. 

PROMISSORY  NOTES 

1189  Accommodation  maker,  plea  (111.) 

That  said  note  in  said count  of  said  declaration 

specified  and  said  to  have  been  given  by  said  defendant  to  said 
plaintiff,  was  made  and  entered  into  without  a  good  or  valuable 
consideration,  and  that  the  same  is  entirely  without  considera- 
tion; and  said  defendant  shows  to  the  court  that  said  note  was 
given  by  said  defendant  to  said  plaintiff  as  an  accommodation 

216  Steele  v.  Fraternal  Tribunes,  lottesville  Woolen  Mills,  109  Va.  1, 
215  111.  190   (1905).  4  (1908). 

217  Adams    Express    Co.    v.    Char- 


ASSUMPSIT  "^^^ 


said  note  whatever  and  the  ^-.™^XntTff     Whe  efore^aid^d^^^^ 

eration.    (Pray  judgment)  -"^ 

1190  Assignment,  practice 

In  order  to  put  in  issue,  in  Illinois,  the  assignment  of  a  promis- 
sory  note  under  the  general  issue,  it  is  necessary  to  make  and 
file  w^h  the  plea  an  affidavit  stating,  speeifteally,  that  the  payee 
did  not  assig^  the  note,  or  that  the  signature  to  the  assignment 
is  not  his.2i» 
1191  Consideration,  want  or  failure,  generally 

At  common  law  failure  of  consideration  could  not  be  pleaded 
intn  acUon  upon  a  promissory  note.-  In  Illinois  the  ru^  has 
been  changed  by  statute  in  actions  upon  notes,  bonds  bills  or 
other  written  instruments,  allowing  the  pleading  of  three  dis- 
nct  defenses;  want  of  consideration,  total  failure  of  considera- 
tion  and  partial  failure  of  consideration,  requiring  each  de- 
fens'e  to  be  specifically  and  separately^pleaded  or  notice  given 
under  the  general  issue,  and  proved.- 1 

So  since  the  adoption  of  Circuit  Court  Rule  7c  m  M.ch.gan, 

the  facts  upon  which  the  defense  of  failure  or  want  o    eonsid- 

r  tion  of  a  written  instrun.ent  or  of  a  P-ussoty  no  e  wh.h 

constitutes  the  basis  of  the  action,  must  be  plainly  set  forth  in  a 

notice  added  to  the  plea.-" 

A  defendant  may  show  the  want  of  consideration  for  the 
,ivt '  of  the  note  without  specially  pleading  that  defense  wten 
L  plaintiff  introduces  the  note  under  the  common  eounts.-' 

The  defense  of  failure  of  consideration  is  not  available  in  an 
act^ion  upon  a  promissory  note  brought  by  an  assignee,  unless 

..Peabody  V.  MU..0O,  211  I...  |;«;/|M\7^/ S,^TMioh. 
324(1904).  §6    59  (1908);    (10074),  C.L.  1897 

n.Templeton     V.     Hay^ard,    65      ^   ^9  (19     ),^^(   ^^^^^  ^^^^ 

111.   178,  179   (1872).  l»;  =     ' '     g     „.„    115  Mith.  41,  43 

2!»  Wadhams  v.  Swan,  109  111.  46,      mKins  ^^^^.^^^^  j^    ^^^^  ^^,1^.  gey 

61    (1884).  „  ^.       \„„.  Mfff  Co  V  Forsyth,  126  Mich. 

eef  rf  T  H'urdrs°k..  1Z[      ir%Tf(l's91.i901),^hvia.ed   by 

Roae    V.  •  Mortimer,     17     111      475      ^^Jt  ""^    ,  Newtoo,  235  lU.  630, 

222  Walbridge  v.  TuUer,  125  Mich. 


586  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

tlie  assignment  was  made  after  maturity,  or  the  assignee  had 
notice  of  the  defense  at  the  time  of  the  assignment. -^^ 

1192  Consideration,  failure;  plea,  requisites 

A  plea  of  failure  of  consideration  must  set  forth  what  the 
consideration  was,--^  and  it  must  be  specilically  averred  wherein 
the  consideration  has  failed. 2-« 

1193  Consideration,  partial  failure;  plea,  requisites 

A  plea  of  part  failure  of  consideration  must  set  forth  in  what 
the  failure  consists  and  tlie  extent  thereof. ^27 

1194  Consideration,  total  failure;  plea,  requisites 

A  plea  of  total  failure  of  consideration  must  set  forth  in  what 
manner  the  consideration  has  failed.-^^  A  defendant  will  not 
be  permitted  to  show  a  partial  failure  under  a  plea  of  a  total 
failure  of  consideration.--'-' 

1195  Dilig-ence,  failure  to  use;  demurrer  (111.) 

And  the  said  defendant  C  by    ., ,  his  attorney, 

comes  and  defends,  when,  etc.,  and  says  that  the 

count  of  the  said  declaration,  and  the  matters  therein  contained 
in  manner  and  form,  etc.,  are  not  sufficient  in  law  for  the  plain- 
tiff to  maintain  his  aforesaid  count,  and  that  he.  the  defendant, 
is  not  bound  by  law  to  answer  the  same,  and  he  shows  to  the 
court  here  the  following  special  causes  of  demurrer  to  the  said 
count,  that  is  to  say,  the  same  on  its  face  shows  that  the  plain- 
tiff did  not  use  due  diligence  by  the  institution  and  prosecution 
of  a  suit  against  the  said  P,  maker  of  said  note,  for  the  recov- 
ery of  the  money  or  property  due  thereon  or  damages  in  lieu 
thereof.     For  that  said  note  was  past  due  upon  and  by  the 

day  of ,  19 . . ,  and  sundry  and  divers 

terms  of  the  court  of  the   court  of  said  county, 

and  the court  of  said  county,  and  of  the 

court  of  said  county  thereafter  commenced  and  were  held,  and 
had     prior     to     the     one     at     which     said     suit     recited     in 

224  Harlow  v.  Boswell,  15  111.  56  228  Sims  v.  Klein,  Breese,  302; 
(1853).  Parks  v.   Holmes,   22   111.   522,   524 

225  Vanlandinp:bam  v.  Ryan,  17  (1859);  Sec.  9,  c.  98,  Hurd's  Stat. 
111.   25,  28    (1855).  1909. 

226  Wisdom  V.  Becker,  52  111.  342,  229  Wadhams  v.  Swan,  109  111. 
345   (1869).  61. 

227  Sims  V.  Klein,  Breese,  302 
(1829);  Sec.  9,  c.  98,  Hurd's  Stat. 
1909. 


ASSUMPSIT  587 

said  count  was  instituted,  and  to  which  said  plaintiff  could 
have  brought  suit  upon  said  note  against  said  P,  but  tailed  so 
to  do-  and  said  count  fails  to  show  or  to  allege  that  such  suit, 
if  so  brought,  would  have  been  unavailing;  and  also  that  such 
count  is  in  other  respects  uncertain,  informal,  and  msutticient. 

Affidavit  of  merits 

^  C?being  first  duly  sworn,  on  oath  says  that  he  is  the  defendant 
in  the  above  entitled  cause;  that  he  makes  special  his  affidavit 
of  merits  on  file  herein;  that  the  plaintiff  wholly  failed  and 
neglected  to  institute  suit  with  due  diligence  against  the  maker 
of  the  notes  in  question;  and  that  he  denies  that  the  said  maker 
at  the  maturitv  of  the  said  notes  or  note  in  question  was  insol- 
vent and  unable  to  pay  the  said  note  or  notes  m  question  or 
any  part  thereof,  as  in  the  declaration  is  alleged. 

Subscribed,  etc. 

1196  Notice  of  defense 

A  general  allegation  of  an  assignee's  notice  of  existing  de- 
fenses against  a  promissory  note,  is  insufficient.  The  averment 
of  notice  must  be  specific  and  must  show  that  the  assignee  had 
notice  at  or  before  the  time  the  note  was  assigned  to  him.^^o 

1197  Ownership,  proof 

A  plea  of  general  issue  in  an  action  of  assumpsit  upon  a 
promissory  note  entitles  the  defendant  to  show  that  the  plaintiff 
did  not  own  the  note  at  the  time  he  commenced  the  action.^^i 

1198  Surrender  to  maker,  pleading 

The  surrender  to  the  maker  of  an  unpaid  promissory  note 
"stamped  paid"  to  enable  him  to  present  it  to  a  surety  for  the 
purpose  of  obtaining  a  surrender  of  collateral  securities,  must 
be  specially  pleaded. ■-'^- 

1199  Recoupment 

In  an  action  for  rent,  the  defendant  may  recoup  any  damages 
which  he  might  have  sustained  as  a  result  of  the  landlord's 

231  Reynolds    v.    Kent,    38    Mich. 
246,  247   (1878). 


588  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

wrongful  act  or  omission  whereby  tlie  beueliciul  eujoyuieut  of 
the  premises  was  diminished.^^a 

1200  Redemption,  failure;  plea,  requisites 

In  an  action  of  assumpsit  for  the  value  of  property  that  has 
been  taken  under  a  contract  of  bailment  and  converted,  a  plea 
which  relies  upon  the  failure  to  redeem  must  allege  the  giving 
of  notice  to  the  bailor  of  the  time  and  place  of  the  sale  and  the 
taking  place  of  the  sale  at  public  auction;  unless  the  contract 
of  bailment  authorizes  a  private  Sale  and  without  notice.^^* 

1201  Res  judicata,  replication   (111.) 

That  prior  to  the  commencement  of  this  suit  the  said  plaintiff 
herein  commenced  an  action  of  assumpsit  against  the  said  df- 

fendant  C,  in  the  court  of  county, 

and  procured  service  of  process  upon  tlie  defendant  in  said 
cause  in  which  said  action  said  plaintiff  filed  his  declaration  and 
bill  of  particulars  declaring  and  counting  upon  the  identical 
and  same  cause  of  action  and  claim  in  said  additional  counts  and 
each  of  them  set  forth,  and  to  which  said  declaration  said  C, 
defendant  herein,  appeared  and  pleaded  the  plea  of  general 
issue  thereto;  that  thereafter  issue  being  joined  in  said  action, 
trial  was  had  by  the  court  upon  the  said  claim  of  said  plaintiff 
against  the  said  defendant,  and  in  and  about  which  said  trial 
of  said  cause  the  said  defendant  was  fully  and  completely  ad- 
vised and  apprized  of  said  plaintiff's  claim  and  cause  of  action 
so  sued  upon,  and  in  which  action  after  a  hearing  by  the  court, 
said  plaintiff  upon  his  motion  submitted  to  a  nonsuit  for  want 
of  sufficient  evidence,  and  then  and  there  notified  said  defend- 
ant that  another  action  would  be  brought  against  said  C  for  the 
same  claim,  of  which  said  defendant  had  due  notice;  and  plain- 
tiff avers  that  immediately  thereafter,  to  wit,  on  the 

day  of ,  said  plaintiff  commenced  the  above 

entitled  action  in  the  circuit  court  of   county 

against  said  defendant  C,  and  filed  in  the  same  his  declaration 
upon  the  identical  claim  so  prosecuted  against  him  in  the 
court ;  and  plaintiff  further  avere  that  said  de- 
fendant C  at  the  time  of  the  commencement  of  this  suit,  and 
since  then  and  now  has  knowledge  or  notice  of  the  fact  that 
this  action,  to  wit,  the  above  entitled  action,  was  brought  upon 
the  same  and  identical  claim  set  forth  and  insisted  upon  in  said 

action  commenced  and  prosecuted  in  said   court 

above  set  forth,  and  that  the  said  claim  in  said  additional  counts, 
and  each  of  them  mentioned,  filed  herein  by  leave  of  court,  con- 

233  Rubens  v.   Hill,   213   111.   523,  234  Cushman  v.  Hayes,  46  HI.  145, 

541    (1905).  153,  154   (1867). 


ASSUMPSIT  589 

stitutes  the  claim  for  which  said  plaintiff  intended  to  bring  the 
above  entitled  action,  and  not  otherwise,  and  of  this  said  de- 
fendant C  had  notice,  to  wit,  at  the  county  aforesaid;  and  this 
he  is  ready  to  verify,  wherefore,  etc. 

1202  Set-off,  advance  money 

In  an  action  of  assumpsit  upon  a  contract  for  the  sale  of 
land,  the  defendant  may  claim  the  advance  money  as  a  set-off, 
where  he  has  rescinded  the  contract  for  the  vendor's  failure  to 
perform  it.^^s 

1203  Set-off,  general  plea  (Fla.) 

That  the  said    ,  the  plaintiff's  testator,  was  in 

his  life  time  and  at  the  time  of  his  death  indebted  to  the  de- 
fendant in  an  amount  equal  to  plaintiff's  claim,  for  money  pay- 
able by  the  said to  the  defendant  for  work  done  by 

the  defendant  for  the  said at  his  request ;  and  for 

money  received  by  the  said for  the  use  of  the  de- 
fendant ;  which  amount  defendant  is  willing  to  set  off  against 
the  plaintiff's  claim. 

(Illinois) 

That  the  plaintiff. .  w before  and  at  the  time  of  the  com- 
mencement of  this  suit  and  still  .  . .  . ,  indebted  to  .  .  h . .  .  . ,  the  de- 
fendant. .,  in  the  sum  of dollars  for  divers  goods, 

wares  and  merchandise  by  said  defendant.,  before  that  time 
sold  and  delivered  to  said  plaintiff..,  at  the  special  instance 

and  request  of  said  plaintiff.  .  ;  and  in  the  like  sum  of 

dollars  for  money  before  that  time  lent  and  advanced  by  said 
defendant.,  to  said  plaintiff..,  at  the  request  of  said  plain- 
tiff. .  ;  and  in  the  like  sum  for  money  by  said  defendant. .  before 
that  time  paid,  laid  out  and  expended  for  the  plaintiff. .,  at  the 
request  of  said  plaintiff.  .  ;  and  in  the  like  sum  for  other  money 
by  said  plaintiff.  .  before  that  time  had  and  received  to,  and 
for  the  use  of  said  defendant. .  ;  and  in  the  like  sum  for  other 
money  before  that  time  then  due  and  owing  to  the  defendant.  . 
for  interest  upon,  and  for  the  forbearance  on  divers  other  sums 
of  money  before  that  time  due  and  owing  from  said  plaintiff.  . 
to  said  defendant. .  ;  and  in  a  like  sum  upon  an  account  stated 
between  the  said  plaintiff.,  and  said  defendant..,  and  agreed 
upon  between  them;  and  in  a  like  sum  for  money  before  that 
time  due  and  owing  from  said  plaintiff.  .  to  said  defendant. ., 
and  being  in  arrear  and  unpaid,  and  upon  which  said  defend- 
ant.,  and  plaintiff.,   had  an  accounting  and  upon  which  ac- 

235  Conway   v.   Case,   22   111,   127, 
140    (1859). 


590  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

counting  said  plaintiff. .  then  and  there  w,  .  .  .  found  to  be  in 
arrears  and  indebted  to  the  defendant..;  and  said  i)hiintiff.  . 
being  so  indebted  in  the  sums  above  nientioned,  and  in  the  man- 
ner set  forth,  then  and  there  promi.sed  to  pay  tlie  said  money 
to  the  said  defendant.  .,  but  notwithstanding  ,  .h.  .  .  .  said  prom- 
ises, said  phiintiff.  .  ha.,  refused,  and  still  refuse.,  so  to  do, 
which  said  sum  and  sums  of  money  so  due  from  the  plaintiff.  . 
to  the  defendant.  .,  as  afore.said,  exceed  the  damages  sustained 
by  the  plaintiff.  .,  by  reason  of  the  non-perfornumce  by  the  de- 
fendant. .  of  the  several  supposed  promises  in  said  declaration 
mentioned,  out  of  which  .said  sum  of  money  said  defendant.. 
....  ready  and  willing,  and  hereby  offer.  .  to  set  off  and  allow 
the  full  amount  of  said  damages;  and  this  said  defendant.. 
ready  to  verify,  wherefore  .  .he.  .  .  .  pray. .  judgment,  etc. 

Tic  plication 

That  the  said  plaintiff.  .  w.  .  .  .  not  nor  ....  indebted  to  the 
said  defendant.  .  in  manner  and  form  as  the  said  defendant.  . 
ha. .  above  in  .  .h.  .  . .  said  last  plea  in  tliat  behalf  alleged. 

(Maryland)  Pica 

And  the  said ,  defendant  in  this  action,  by  leave 

of  the  court  first  had  and  obtained,  for  a  addi- 
tional plea  says : 

That  the  plaintiffs  are  indebted  to  the  defendant  in  an  amount 
greater  than  the  plaintiffs'  claim,  for  money  payable  by  the 
plaintiffs  to  the  defendant. 

1.  For  goods  bargained  and  sold  by  the  defendant  to  the 
plaintiffs. 

2.  P'or  money  lent  by  the  defendant  to  the  plaintiffs. 

3.  For  money  had  and  received  by  the  plaintiffs  for  the  use 
of  the  defendant. 

4.  And  for  money  paid  by  the  defendant  for  the  plaintiffs 
at  their  request — a  statement  of  which  said  claims  is  hereto  at- 
tached— which  said  amount  the  defendant  is  willing  to  set  off 
against  the  plaintiffs'  alleged  claims. 

1204  Set-off,  special  plea  (111.) 

That  at  and  prior  to  the  time  of  bringing  suit  herein,  the  said 
plaintiffs  were  indebted  to  these  defendants  in  the  sum  of 
dollars  under  and  by  virtue  of  a  certain  agree- 
ment or  contract  entered  into  between  the  plaintiffs  and  these 

defendants  on  or  about  the day  of , 

19..,  whereby  the  plaintiffs  for  a  certain  consideration  named, 
agreed  to  furnish  all  material  and  do  all  labor  in  the  construc- 
tion of  the  concrete  work  at  the  building  of  the  defendants  on 
the    corner  of    and    


ASSUMPSIT  ^^^ 


rSh^l.a  speeiH^^non.  sa.d  p.a.n««.  -^  -  " ^.^ ^- 

cement  vault  lights,  steel  trap  doors  and  springs,  . . . .  •  •  •  •  •  •  •  • 

cemeni  v  ^^       ^^^.^^^  ^^.^  ^^^^^  ^^^^  ^^  ^^  ^f  the  best 

nnaiitV'also'one inch  star  solid  coal  hole  cover  and  thim- 

Me    also  all  sfeel  "I"  beams  necessary  for  such  construction 

a  1  beams  to  be  placed  on  the  street  side  of  said 

buildinVto  be  .... .  inch  beams  of lbs.  ^y^lght  per  foot, 

and  on  'the         street  side  of  said  building  said  plain- 
tiffs were  to  use  in  said  construction   ....  •.•  '  V;!;  -r' bpnms 

hpams  weiehine      lbs.  per  foot ;  said  steel     I     beams 

tre  to  eftend  from  the  curb  wall  to  the  building  wall,  sup- 
ported brpiers  of  the  same  size  and  quality  of  the  beams,  and 

said  steel  beams  for  said  sidewalk  on  both  the •••••/  /° 

said  steel  ^^eam^^^^^^  ^.^^  ^^  ^^.^  ^^^^.^^^.^^^  ^^,^^.^  ^^  ^^  ^^^  ^ 

and'one-half'feet  apart,  and  the  concrete  work  was  to  cover  the 
Entire  basement  arL  of  said  Imilding,  also  the  entire  sidewalk 

space  from  the  east  line  of  said  building  at street 

around  to  the  south  line  of  said  building  on \    r    ' 

and  "^^    to  run  from  the  wall  of  said  building  out  and  do^m 
?o  the  curb  stone  at  said  line  and  form  a  complete  concrete 
idewalk  around  said  building;  and  the  said  plamtifts  were  also 
to  use  in  the  construction  of  said  concrete  sidewalk  and  con- 
crete basement  the  best  .,uality  of  clean,  sharp  torpedo  sand 
he  best  <iuality  of  imported  German  Portland  cement  and  firs 
class  crushed  limestone,  the  said  concrete  work  in  said  basement 
to  be  four  inches  in  thickness,  laid  m  timber  tonus,  and  to  be 
n  all  strictlv  first  class  and  pitched  and  drained  as  directed; 
and  the  said  plaintiffs  in  said  contract  .^f  ^ V%"'teTms  le 
sidewalk  in  arch  shape  between  the  said  steel      I     beams   the 

same  to  be   aid   inches  thick  at  the  edge  of  the 

'"r '  beams  and   inches  thick  at  the  crown  of  the  arch, 

all  to  be  constructed  in  a  first  class  manner  and  in  accordance 
with  the  citv  ordinances;  and  the  said  plaintiffs  then  and  there 
n  said  contract  agreed  and  guaranteed  said  work  to  be  strictly 
first  class  in  all  particulars,  and  guaranteed  the  same  not  to 
cr^k  scale  or  break  for  a  period  of  ten  years,  and  to  be  com- 
pleted in  all  respects  to  the  satisfaction  of  these  said  defend- 

^"^And  the  defendants  aver  that  the  plaintiffs  did  not  nor 
would  although  often  requested  so  to  do,  furnish  to  these  sa  d 
defendants  a  concrete  sidewalk  and  basement  in  accordance  with 
sai^  agreement  and  specifications;  that  the  steel'T'  beams  and 
ron  work  necessary  in  the  construction  of  ^^^^  concrete  sid- 
walk  and  basement  were  not  in  accordance  with  the  said  speci- 
fications; that  the  said  steel  "I"  beams  were  not  of  the  desig- 


592  ANNOTATED   FORMS  OF   PLEADING   AND    PKACTICE 

nated  size,  but  of  a  much  smaller  size  and  much  lighter  weight ; 
that  said  concrete  sidewalk  was  not  pitched  in  accordance  with 
the  city  ordinances,  and  that  said  concrete  basement  was  not 
pitched  and  drained  in  accordance  witii  the  directions  of  these 
defendants  given  then  and  there  to  the  s<iid  plaintiiVs;  that  the 
concrete  used  in  the  construction  of  said  sidewalk  an^l  said 
basement  was  not  composed  of  clean,  siiarp  torpetlo  sand,  nor  of 
the  best  quality  of  imported  German  Portland  cement  and  clean 
crushed  limestone,  but  was  composed  of  an  inferior  (juality  of  tor- 
pedo sand  and  a  cheap  and  worthless  grade  of  cement ;  and  said 
concrete  in  said  basement  is  not  four  inches  in  thickness  as  speci- 
fied in  said  agreement ;  nor  is  said  concrete  sidewalk and 

inches  thick  at  the  edge  of  the  "I"  beams,  but  is  about 

inches  thick  at  the  edge  of  the  "I"  beams;  nor  was  said 

sidewalk  so  constructed   as  to   be    inches   thick   at  the 

crown  of  the  arch  as  specified  in  said  agreement,  but  is  in  many 

places  less  than   inches  thick  at  tlie  crown  of  the 

arch;  nor  was  said  concrete  mixed  in  accortiance  with  said  speci- 
fications; and  said  sidewalk  and  basement  have  cracked,  scaled 
and  broken  and  are  not  a  first  class  job  in  all  particulars;  and 
said  work  was  not  completed  by  the  said  plaintiffs  in  all  details 
to  the  entire  satisfaction  of  these  said  defendants  as  provided 
in  said  agreement. 

AVherefore  the  defendants  aver  that  on  account  of  said  de- 
fective material  used  in  the  construction  of  said  concrete  side- 
walk and  basement,  and  on  account  of  the  defective  construction 
of  said  sidewalk  and  basement,  the  same  have  cracked,  scaled 
and  broken  in  many  places  and  are  crumbling  and  falling  to 
pieces  and  are  filled  with  holes  and  crevices,  and  tiie  said  work 
so  finished  and  completed  by  the  plaintiffs  as  aforesaid  is  prac- 
tically worthless  and  within  a  few  years  will  have  to  be  re- 
moved and  taken  entirely  out,  to  the  great  damage  of  these  de- 
fendants, and  will  necessitate  these  said  defendants  expending 

the  sum  of  $ to  complete  said  work  in  accordance  with 

said  contract,  and  the  default  of  the  said  plaintiffs  in  this  regard 
as  aforesaid  has  put  these  said  defendants  to  great  expense  and 
inconvenience  in  carrying  on  the  business  of  these  said  defend- 
ants to  facilitate  which  said  concrete  sidew^alk  and  basement 
were  desired  by  these  defendants,  as  the  plaintiffs  well  knew; 
whereby  these  said  defendants  have  sustained  damages  to  the 

amount  of  $ ,  which  said  sum  of  money  so  due  from 

the  plaintiffs  to  these  defendants  as  aforesaid  exceeds  the  dam- 
ages, if  any,  sustained  by  the  plaintiffs  by  reason  of  the  non- 
performance by  the  defendants  of  the  several  supposed  promises 
in  said  declaration  mentioned,  and  out  of  which  said  sum  of 
money  the  defendants  are  ready  and  willing  and  hereby  offer 
to  set  off  and  allow  to  the  plaintiffs  the  full  amount  of  said  dam- 
ages.    (Pray  judgment) 


ASSUMPSIT  593 

(Maryland) 

That  the  plaintiff,  ,  is  indebted  to  the  defend- 
ants in  an  amount  equal  to  or  greater  than  the  plaintiff  claims, 

for  that  the  plaintiff  and  the  defendants,  on  the  

day  of  ,  in  the  year  19.  .,  entered  into  a  written 

agreement,  signed  and  sealed  by  the  said  plaintiff  and  said  de- 
fendants, under  which  the  said  plaintiff  bound  himself  to  erect 

for  the  said  defendants  in county  a  certain  church 

])uilding  to  be  known  as ,  exclusive  of  all  masonry 

work,  within months  from  the  said 

day  of »  19.  .,  according  to  the  plans  and  specifica- 
tions set  forth  in  or  made  a  part  of  said  agreement,  and  that  the 
defendants  duly  performed  all  the  conditions  thereof  on  their 
part,  but  that  the  plaintiff  did  not  comply  with  his  part  of 
said  agreement,  in  that  he  did  not  complete  the  said  church 
within  the  time  specified,  and  in  that  he  did  not  complete  said 
church  according  to  the  plans  and  specifications,  and  in  that 
he  used  improper  materials  and  his  work  was  so  defective  that 
the  roof  sagged  and  leaked,  and  the  church  has  been  badly  dam- 
aged by  reason  tiiereof,  whereby  the  defendants  were  greatly 

damaged  and  claim  therefor  the  sum  of  $ ,  which  amount 

the  defendants  are  willing  to  set  off  against  the  plaintiff's  claim. 

As  in  duty,  etc. 

(Virginia) 

The  said  defendant  by  his  attorney  comes  and  says:  That 
before  and  at  the  time  of  the  commencement  of  this  action  and 
of  the  filing  of  this  plea  the  said  plaintiff  was  and  still  is  in- 
debted to  the  said  defendant  in  a  large  sum  of  money,  to  wit,  the 

sum  of  dollars,  which  said  amount  is  justly  due 

to  the  said  defendant  by  the  said  plaintiff  and  which  amount  is 
made  up  of  the  following  items,  to  wit:  (Itemize  and  explain 
each  transaction,  if  more  than  one). 

And  the  said  defendant  avers  that  the  said  sum  of  money, 
so  due  and  owing  to  the  said  defendant  from  the  plaintiff  is  in 
arrear  and  unpaid ;  and  he,  the  said  defendant,  is  ready  and 
willing  and  hereby  offers,  according  to  the  form  of  the  statute 
for  such  cases  made  and  provided,  to  set  off  and  allow  same 
against  the  sum  of  money  asserted  and  claimed  in  a  certain 
warrant  in  this  action  mentioned. 

And  this  the  said  defendant  is  ready  to  verify,  etc. 

12C5  Special  assessment 

In  an  action  of  assumpsit  for  the  collection  of  a  special  as- 
sessment no  irregularities  or  informalities  can  be  urged  in  its 
defense.236 

236(3221),    C.    L.    1897    (Mich.). 


594  ANNOTATED   FORMS  OF  PLEADING  AND   PRACTICE 

1206  statute  of  frauds,  plea  (111.) 

That  each  and  every  one  of  the  several  supposed  promises  in 
the  said  declaration  mentioned  was  a  special  promise  to  answer 
for  the  debt  of  another  person,  to  wit,  the  said  F,  and  that 
none  of  said  supposed  promises  was  or  is  in  writing,  or  was  or 
is  signed  by  the  defendants,  or  either  of  them,  or  by  any  otlier 
person  or  persons  thereunto  by  them,  or  either  of  them,  law- 
fully authorized,  and  that  no  memorandum  or  note  of  any  of 
said  supposed  promises  was  or  is  in  writing,  or  was  or  is  signed 
by  the  defendants,  or  either  of  them,  or  by  any  other  person 
or  persons  thereunto  by  them,  or  either  of  them,  lawfully  author- 
ized, according  to  the  form  of  the  statute  in  such  case  made  and 
provided.     (Pray  judgment) 

1207  Statute  of  limitations,  plea,  requisites 

A  plea  which  sets  up  the  statute  of  limitations  should  not 
contain  an  allegation  that  the  supposed  causes  of  action  con- 
tained in  certain  counts  were  separate  and  distinct  causes  of 
action  from  those  alleged  in  other  counts,  because  such  a  state- 
ment is  a  conclusion  of  the  pleader  and  is  of  no  binding  force.-^'^ 

1208  Statute  of  limitations;  plea  (111.) 

That  the  several  supposed  causes  of  action  in  said  common 
counts  of  said  declaration  mentioned,  did  not,  nor  did  any  or 

either  of  them,  accrue  to  the  plaintiff  or  to  said   

during  his  life  time,  at  any  time  during  the  tive  years  next 
preceding  the  commencement  of  this  suit,  in  numner  and  form 
as  the  plaintiff  has  above  complained  against  them,  the  defend- 
ants.    (Pray  judgment) 

Replication 

That  the  said  several  causes  of  action  set  forth  in  the  com- 
mon counts  part  and  parcel  of  said  declaration,  and  each  and 

every  of  them  did  accrue  to  him  and  to  the  said   

during  his  lifetime  within  five  years  next  before  the  commence- 
ment of  this  suit,  in  manner  and  form  as  he  has  above  com- 
plained against  the  defendants. 

Plea  h 

That  the  supposed  cause  of  action  in  plaintiff.  .  declaration 
mentioned,  did  not  accrue  to  the  plaintiff.  .  at  any  time  within 
ten  years  next  before  the  commencement  of  this  suit  in  manner 
and  form  as  plaintiff.  .  ha. .  above  alleged.     (Pray  judgment) 

237  Fish  V.  Farwell,   160  111.  236, 
243   (1896). 


ASSUMPSIT 


Replication 


595 


That  the  said  cause  of  action  did  accrue  to  it  withm  ten  years 
next  before  the  commencement  of  this  suit  in  manner  and  form 
as  it,  the  plaintiff,  has  above  complained  against  the  detendant. 

h 

That  the  said  promises  of  the  defendant,  in  said  declaration 
referred  to,  were  in  writing,  and  that  the  said  several  causes  ot 
action,  and  each  of  them,  did  accrue  to  them  within  ten  years 
next  before  the  commencement  of  this  suit,  in  manner  and  form 
as  they  have  complained  against  the  defendant.  (Fray  judg- 
ment) 

Rejoinder 

That  the  said  alleged  promises  of  the  defendant,  in  said  decla- 
ration referred  to,  if  such  promises  were  in  fact  made,  were  not 
in  writing;  and  of  this  the  defendant  puts  itself  upon  the  coun- 
try, etc. 

(Virginia)   Plea 
That  the  said  several  supposed  causes  of  action  in  said  declara- 
tion mentioned,  if  any  such  there  were,  or  still  arc,  did  not  nor 
did  anv  or  either  of  them  accrue  to  the  said  plaintiff  at  any 

time  within years  next  before  the  coiumeucement 

of  this  suit  in  the  manner  and  form  of  this  suit,  in  the  manner 
and  form  as  the  said  plaintiff  hath  in  his  declaration  complained 
against  it,  the  said  defendant.     (Pray  judgment) 

1209  Subscription  to  shares  of  capital  stock,  fraud  and  circum- 
vention; plea  (111.) 
That  the  contract  of  subscription   in   the   plaintiff's   decla- 
ration set  forth  was  obtained  to  be  made  and  executed  by  de- 
fendant to  the  plaintiff  because  of  the  false,  fraudulent  and  de- 
ceitful statements  and  representations  of  the  plaintiff  on  its 
own  behalf  and  motion  and  by  its  president,  secretary,  treasurer, 
officers   managers,  directors,  canvassers  and  agents  made  to  the 
defendant  before  and  at  the  time  the  said  alleged  contract  was 
made  and  executed  as  aforesaid  in  this,  that  said  contract  of 
subscription  was  made  and  executed  by  defendant  to  plaintiff 
upon  the  statement  and  representation  of  the  plaintiff,  its  presi- 
dent   secretary,  treasurer,  officers,  managers,  trustees,  canvass- 
ers and  agents  then  and  there  made,  that  the  capital  stock  of  the 
plaintiff  had  not  before  that  time  been  fully  subscribed  and 
taken  and  that  it  was  then  ready,  able  and  willing  to  deliver  said 
capital  stock  to  this  defendant,  as  in  the  said  contract  of  sub- 
scription set  forth,  which  said  statement  was  wholly  false,  as 


596  ANNOTATED   FORMS  OF   PLILVDING   AND   PRACTICE 

the  plaintiff  well  knew  at  the  time  it  was  made.  Yet  the  defend- 
ant then  and  there  fully  relying  on  said  statement  and  represen- 
tation made  by  and  on  beiialf  of  the  plaintiff,  entered  into  the 
aforesaid  contract,  said  plaintitt'  well  knowing:  that  its  capital 
stock  had  before  that  time  been  wholly  subscribed  and  allotted, 
and  that  none  of  its  capital  stock  could  be  delivered  by  it  on 
its  contract  with  defendant.     (Pray  judgment) 

Replication 

That  the  said  contract  of  subscription  was  not  obtained  to  be 
made  and  executed  by  the  defendant,  by  the  fraud  or  circum- 
vention of  the  plaintitf  and  its  otTHcers,  etc.,  and  in  manner  and 

form  as  the  said  defendant,    ,  has  above  in  that 

plea  alleged,  but  that  the  same  was  obtained  fairly. 

1210  Tender  of  admitted  part,  plea  (111.) 

And  as  to  the  said  sum  of   dollars,  parcel  of 

the  said  several  sums  of  money  in  the  said  declaration  mentioned, 
the  defendant  says  that  the  plaintiff  ouf,'ht  not  to  have  his  afore- 
said action  against  him,  the  defendant,  to  recover  any  greater 
damages  than  that  sum  of  money,  because  he  says  that  after 
the  making  of  the  said  several  promises  in  the  said  declaration 

mentioned,  as  to  the  said  sum  of dollars,  parcel, 

etc.,  and  before  the  commencement  of  this  suit,  to  wit,  on  the 

day  of ,  19-  •,  he,  the  defendant,  was 

ready  and  willing  and  then  and  there  tendered  and  ollVi-ed  to 

pay  to  the  plaintiff  the  said  sum  of   dollars,  to 

receive  which  of  the  defendant  the  plaintiff  then  and  there 
wholly  refused ;  and  the  defendant  further  avers  that  since  the 
making  of  the   said   several  promises  as  to  the   said  sum   of 

dollars,  he  has  been  and  still  is  there  ready  to  pay 

to  the  plaintiff  the  said  sum  of  money;  and  the  defendant  now 
brings  the  same  into  the  court  here,  ready  to  be  paid  to  the 
plaintiff,  if  he  shall  accept  the  same;  and  this  the  defendant  is 
ready  to  verify ;  wherefore,  he  prays  judgment  if  the  plaintiff 
ought  to  have  his  aforesaid  action  to  recover  any  greater  sum 

than  the  said  sum  of  dollars,  parcel  of  the  said 

several  sums  of  money,  etc. 

Replication 

And  as  to  the  plea  of  the  defendant  by  him  above  pleaded  as 
to  the  said  sum  of dollars,  parcel,  etc.,  and  num- 
bered     plea,  the  plaintiff  says  that  he  ought  not, 

by  reason  of  anything  in  that  plea  alleged,  to  be  barred  from 
having  his  aforesaid  action  to  recover  further  damages  than 
that  sum  of  money,  because  he  says  that  the  defendant  did  not 
tender  or  offer  to  pay  to  the  plaintiff,  the  said  sum  of 


ASSUMPSIT  597 

dollars,  parcel,  etc.,  in  manner  and  form  as  the  defendant  has 
above  in  that  plea  alleged;  and  this  the  plaintiff  prays  may  be 
inquired  of  by  the  country,  etc. 

1211  Tender  under  compromise,  plea 

The  plaintiff  ought  not  to  have  or  maintain  his  aforesaid 
action  thereof  against  him,  the  said  defendant,  to  recover  any 

more  or  greater  damages  in  this  behalf  than  the  sum  of , 

because  he  says  that  the  defendant,  on,  etc.,  at,  etc.,  was  in- 
debted to  the  plaintiff  by  virtue  of  the  said  several  promises  and 
undertakings  in  the  said  declaration  mentioned,  in  the  sum  of 

,  and  no  more,  and  that  he,  the  said  defendant, 

afterwards  and  before  the  commencement  of  this  suit,  to  wit, 
on,  etc.,  at,  etc.,  was  also  indebted  to  divers  other  persons,  to 
wit,  etc.,  etc.,  in  certain  other  large  sums  of  money  respectively, 
and  the  defendant  being  so  indebted  as  aforesaid,  the  defendant 
was  then  and  there  unable  to  pay  them,  his  said  creditors,  the 
full  amount  of  the  said  several  debts,  whereof  the  said  plaintiff 
and  the  said  several  other  creditors  of  the  said  defendant  then 
and  there  had  notice;  and  it  was  then  and  there  computed  and 
agreed,  upon  an  investigation  then  and  there  had,  by,  between, 
and  amongst  the  plaintiff  and  the  said  several  other  creditors 
of  the  defendant,  that  the  estate  and  effects  of  the  said  defen- 
dant  would  not  extend   to  pay    dollars  on   the 

amount  of  tlie  debts  due  and  owing  by  the  said  defendant,  of 
which  the  plaintiff  and  the  said  several  other  creditors  also 
tlien  and  there  had  notice:  whereupon,  it  was  then  and  there 
proposed  and  agreed,  by,  between,  and  amongst  the  plain- 
tiff and  the  said  several  other  creditors  of  the  defendant,  and 

also  by   ,  by  the  procurement  of  the  defendant, 

and  at  the  request  of  the  plaintiff,  that  the  said 

should  and  would  pay  out  of  his  own  proper  moneys  to  the 
plaintiff  and  the  several  other  creditors  of  the   defendant,  a 

sum    of    money    equivalent    to    dollars    on    the 

amount  of  their  respective  debts,  in  full  satisfaction  and  dis- 
charge thereof;  which  said  sura  of  money  they,  the  plaintiff, 
and  the  said  several  other  persons,  creditors  of  the  defendant, 
should  and  would  severally  accept  and  receive  in  full  satisfac- 
tion and  discharge  of  their  said  respective  debts;  and  the  said 
agreement  being  so  made  as  aforesaid,  to  wit,  on,  etc.,  at,  etc., 
in  consideration   that  the  said   defendant,   and   also   the  said 

by  the  procurement  of  the  defendant,  and  at  the 

request  of  the  plaintiff,  had  then  and  there  undertaken  and 
faithfully  promised  the  plaintiff  to  perform  and  fulfil  all  things 
in  the  agreement  contained  on  their  respective  parts  to  be 
performed  and  fulfilled,  the  plaintiff  and  the  said  several  other 
creditors  of  the  defendant  undertook  and  then  and  there  faith- 
fully promised  the  defendant  to  perform  and  fulfil  all  things 
in  the  said  agreement  contained  on  their  parts  and  behalfs  to 


598  ANNOTATED   FORMS   OF   PLEADING    AND    PRACTICE 

be  performed  and  fulfilled;  aud  the  defendant  avers  that  in 
consideration  and  in  i)ursuance  of  tho  said  agreements  after- 
wards and  before  the  commencement  of  tliis  suit,  to  wit,  on,  etc., 

at,  etc.,  the  said tendered  and  offered  to  pay,  out 

of  his  own  proper  moneys,  for  and  on  behalf  of  the  defendant, 

to  the  plaintiff,  the  sum  of dollars,  beinj,'  so  much 

as  amounted  to   dollars  upon  the  said  sum  of 

dollars,  the  said  amount  of  the  said  debt,  so  as 

aforesaid  due  and  owing  from  the  defendant  to  the  plaintiff 
and  which  said  sum  of  money  so  tendered  aud  offered  to  be 
paid  as  last  aforesaid,  the  plaintiff  then  and  there  refused  to 

accept.    And  the  defendant  further  says,  that  the  said , 

from  the  time  of  making  of  the  said  agreement,  always  hitherto 
hath  and  still  is  ready  to  pay  the  said  sum  of  money  to  the 

plaintiff',   to  wit,  at,   etc. ;  and  the  said  sum  of   

dollars,  so  tendered  as  aforesaid,  is  now  brought  into  court 
here,  ready  to  be  paid  to  the  plaintiff',  if  he  will  receive  the 
same;  and  this  the  defendant  is  ready  to  verify:  wherefore  he 
prays  judgment  if  the  plaintiff  ought  to  have  or  maintain  his 
aforesaid  action  thereof  to  recover  any  more  or  greater  dam- 
ages than  dollars  in  this  behalf  against  the  de- 
fendant.'-^^^ 

1212  Trust  and  monopoly,  plea  (111.) 

That  the  said  cause  of  action  in  said  declaration  mentioned, 
and  all  the  causes  of  action  therein  set  forth,  originated  in  the 
following  manner  and  none  other,  that  is  to  say.  that  the  said 
j)hiintiff',  being  a  corporation,  had  before  tiie  making  of  the  al- 
leged promises  by  the  said  defendants  set  forth  in  said  declara- 
tion, created,  entered  into  and  was  at  said  time,  a  combination 
existing  for  the  purpose  of  regulating,  fixing  and  establishing 
the  price  of  milk  to  be  sold  within  the  corporate  limits  of  the 

city  of by  producers,  shippers  and  wholesale 

dealers  to  the  city  dealers  and  retail  dealers  within  said  city, 
and  for  the  purpose  of  fixing  and  limiting  the  amount  and  quan- 
tity of  milk  to  be  supplied  and  sold  within  the  corporate  limits 

of  the  city  of l)y  producers,  shippers  and 

wholesale  dealers  to  the  city  dealers  and  retail  dealers  within 
said  city ;  that  pursuant  to  the  purpose  of  such  combination, 
and  before  the  making  of  the  alleged  promises  and  undertakings 
of  the  said  defendants,  set  forth  in  said  plaintiff's  declaration, 
said  plaintiff  became  a  party  to  an  agreement  and  combination, 
confederation  and  understanding,  with  divers  persons,  to  wit: 

in  number,  who  were  then  and  there  stockholders 

in  the  said  corporation  and  who  were  then  and  there  producers 
of  milk  living  and  being  in  the  vicinity  of  said  city  of , 

238  Anstey   v.    Marden,    1    Bos.    & 
Pul.  N.  K.  124   (1804). 


ASSUMPSIT  599 

and  with  divers  and  sundry  other  persons,  to  regulate,  fix  and 
establish  the  price  at  which  milk  should  thenceforth  be  supplied 

and  sold  within  the  corporate  limits  of  the  city  of 

by  the  said  plaintiff  and  the  persons  so  named  as  aforesaid,  to 
the  city  dealers  and  the  retail  dealers  of  milk  in  said  city ;  and 
the  said  plaintiff",  before  the  making  of  the  alleged  promises 
and  undertakings  set  forth  in  said  plaintiff' 's  declaration,  had 
also  entered  and  become  a  party  to  an  agreement,  contract, 
combination  and  confederation  to  fix  and  limit  the  amount  and 
quantity  of  milk  to  be  supplied  and  sold  within  the  corporate 
limits  of  said  city;  that  pursuant  to  the  said  unlawful  agree- 
ment and  combination,  the  said  plaintiff  afterwards  caused  the 
said  defendant, ,  who  was  then  and  there  a  re- 
tail dealer  in  milk  in  said  city  of to  enter  into  the 

said  unlawful  combination  by  executing  and  delivering  to  said 
plaintiff'  (jointly  with  his  said  co-defendant),  the  contract  or 
agreement  in  writing,  set  forth  in  said  plaintiff"s  declaration, 
and  after  the  execution  thereof,  the  said  plaintiff  delivered  to 

the  said  defendant, certain  large  quantities  of  milk 

to  be  by  said  defendant  again  sold  and  retailed  to  the  customers 

of  said  defendant  in  said  city  of ,  and  for  which 

the  said  defendant,  had  in  said  undertaking  and  writing,  then 
and  there  agreed  and  promised  to  pay  the  said  plaintiff  the  price 
as  fixed  and  determined  by  said  phiintiff',  and  the  said  combina- 
tion hereinbefore  referred  to,  contrary  to  the  law  in  such  case 
made  and  provided ;  and  the  said  plaintiff  avers  that  the  said 
goods  and  mercliandise  by  the  said  plaintiff'  alleged  in  said  dec- 
laration to  have  been  sold  and  delivered  to  the  said  defendant, 
were  none  other  and  different  than  the  said  milk  so  delivered 
as  above  set  forth,  and  that  the  said  agreement  and  undertaking 
of  tiie  defendants  set  forth  in  said  declaration,  were  none  other 
and  dift'erent  than  the  agreement  and  undertakings  of  the  de- 
fendants to  pay  the  said  plaintiff  the  said  unlawful  price  for 
the  said  milk  as  above  set  forth.     (Pray  judgment) 

Beplication 

That  the  said  several  causes  of  action,  and  each  and  every 
of  them  originated  in  manner  and  form  as  it  has  above  com- 
plained against  the  defendant,  and  that  it,  said  plaintiff,  is  not 
nor  was  a  corporation  organized  and  created  for  the  purpose  of 
regulating,  fixing  and  establishing  the  price  of  milk  to  be  sold 
within  the  corporate  limits  of  the  city  of by  pro- 
ducers, shippers  and  wholesale  dealers  to  the  city  dealers  and 
retail  dealers,  nor  for  the  purpose  of  fixing  and  limiting  the 
amount  and  quantity  of  milk  to  be  supplied  and  sold  within  the 
corporate  limits  of  the  city  of by  producers,  ship- 
pers and  wholesale  dealers  to  the  city  dealers  and  retail  dealers; 
that  it  did  not  before  the  making  of  the  promises  and  undertake 
ings  of  said  defendants,  set  forth  in  its,  said  plaintiff's  declara- 


600  ANNOTATED   FORMS  OF   PLEADING   AND   PILVCTICE 

tion,  enter  into  and  become  a  party  to  an  agreement,  combina- 
tion, confederation  and  understanding  witli   and 

divers  and  sundry  other  persons,  or  any  persons  whatever,  to  reg- 
ulate, fix  and  establish  the  price  at  which  milk  should  thence- 
forth be  supplied  and  sold  within  the  corporate  limits  of  the 

city  of  by  itself  and  said  persons,  so  named  as 

aforesaid,  or  any  persons  whatever,  to  the  city  dealers  and  retail 
dealers  of  milk  in  said  city;  that  it  had  not,  before  the  making 
of  the  promises  and  undertakings  set  forth  in  its,  said  plaintiff's 
declaration,  or  at  any  time,  entered  into  and  become  a  party  to 
an  agreement,  contract,  combination  and  confederation  to  fix 
and  limit  the  amount  and  quantity  of  milk  to  be  supplied  and 

sold  within  the  corporate  limits  of  the  city  of   ; 

that  the  said  several  causes  of  action,  and  each  and  every  of  thera 
did  not  accrue  to  it,  said  plaintiff,  pursuant  to  an  unlawful 
agreement,  combination,  confederation,  and  understanding  what- 
ever, but  did  accrue  to  it,  said  plaintiff,  in  manner  and  form  as 
it  has  above  complained  against  these  defendants. 

GENERAL  ISSUE 

1213  Nature  and  scope,  generally 

In  assumpsit  the  general  issue,  in  effect,  denies  the  existence 
of  every  material  fact,  or  state  of  facts,  which  constitutors  the 
plaintiff's  cause  of  action  declared  upon.--"*»  Under  this  issue, 
the  defendant,  at  common  law  may  avail  himself  of  any  matter 
which  shows  that  the  contract  is  illegal,  by  reason  of  infancy, 
lunacy,  coverture  at  the  time  the  contract  was  entered  into, 
gaming  and  usury.-'"^  The  defendant  may  also  show  that  the 
contract  set  up  by  the  plaintiff  is  not  the  contract  that  was 
actually  entered  into;  2-11  or  he  may  urge  anything  which  goes 
to  show  that  the  plaintiff  is  not  eiiuitably  entitled  to  the  amount 
of  his  claim,  except  when  it  arises  from  intricate  and  disputed 
accounts  between  various  parties.-'*^ 

Any  matter  which  shows  that  the  defendant  was  not  indebted 
to  the  plaintiff  at  the  time  of  the  commencement  of  the  action 
is  admissible  under  the  general  issue.  Thus  the  release  or  the 
discharge  of  a  surety  by  a  valid  extension  of  time  agreed  to 

239  Wilson  V,  Wagar,  26  Mich.  452,  155,  164  (1867)  ;  c.  68,  Hurd  's  Stat. 
455    (1873).  1909,  p.   1240. 

240  Stockham  v.  Munson,  28  111.  241  Weaver  v.  Eichards,  156  Mich. 
51,    53    (1862);    Snyder    v.    Willey,  320,323    (1909). 

33  Mich.  483,  489    (1876);   Hill  v.  242  Leigh     v.      National      Hollow 

Callaghan,      31      Mich.      424,      425       Brake-Beam  Co.,   223   111.   407,   409 
(1875)  ;  Streeter  v.  Streeter,  43  111.       (1906). 


ASSUMPSIT  ^^^ 

between   the   principal   debtor   and   the   creditor,   without   the 
surety's  assent  may  be  shown  under  the  general  issue.^ 

1214  Delivery 

Formerly,  in  Michigan,  a  plea  of  the  general  issue  admitted 
proof  of  the  delivery  of  a  different  article  from  that  which  was 
purchased--  but  now  it  is  doubtful  if  this  defense  or  the  de- 
fense of  non-delivery,  is  provable  under  that  issue.^^ 

1215  Fraud 

Fraud  practiced  in  the  procuring  of  the  acceptance  of  a  draft 
which  is  the  subject  of  the  suit,  may  be  proved  under  the  genera 
issue  in  Marvland.^^'^     It  is  doubtful  if  the  defense  of  fraud  is 
provable  under  the  general  issue  in  Michigan.^^^ 

1216  Nonjoinder  of  proper  plaintiffs 

The  nonjoinder  of  proper  plaintiffs  may  be  sho^v^l  under  the 
plea  of  the  general  issue.^" 

1217  Partnership 

By  Illinois  statutory  provision  a  plea  of  the  general  issue  in 
actions  upon  contracts,  although  verified,  does  not  put  the  part- 
nership of  the  plaintiff  or  the  defendant  m  issue. 

1218  Pa3nnent 

Payment  was  formerly  admissible  in  Michigan  under  the 
general  issue  j^^^  but  now  this  defense  should  be  set  up  m  a 
notice  added  to  the  plea.^^^ 

1219  Performance 

Noncompletion  of  a  contract  forming  the  basis  of  an  action 
of  assumpsit  may  be  shown  under  the  general  issue.^ 

..3  Harrison  v.   Thackaberry,  248       ^^-Hernt^   v.   Cabn,    29   111.   308, 

111.  512,  516   (1911).  25o01cott    V.    Hanson,     12     Mich. 

244Grieb   V.   Cole,   60    Mich.  397,                454    (1864);   Brennan  v.  Tiet- 

402    (1886).            ,   ^  ,      .  sort    49  Mich    397,  398   (1882). 

2.5  Circuit   Court  ^ue   7c  «°?,\  J^.euit  Court   Rule   7c. 

.,n    ?J«"MOin^  252  Brown   v.    Kriser,    129    Mich. 

''2^TCiLd?'c'ott   Rule    7c.  448,450(1902). 

248  Lasher  v.  Colton,  225  111.  234, 
236    (1907). 


602  ANNOTATED   FORMS  OF   PLEADING    AND    I'HACTICE 

1220  Practice 

The  pleas  of  iion  assumpsit  and  mil  ticl  corporation  are  of  the 
same  general  nature  pleas  in  bar,  and  under  Illinois  practice, 
may  be  pleaded  at  the  same  time.-'" 


253 


FORMS 

1221  District  of  Colmnbia 

1.  For  a  plea  to  the  plaintiff's  declaration,  defendant  says 
that  it  never  promised  as  alleged. 

2.  And  for  a  further  plea  to  plaintiff's,  etc.  (Add  special 
matter) 

By  executor 

That  the  said did  not.  in  his  life  time,  undertake 

and  promise  in  nuiuner  and  form  as  is  in  said  deelaration  alleged. 

1222  Florida 

,  defendant,  says  that  he  was  never  indebted  as 

alleged. 

1223  Illinois 

And  the  said  defendant, ,  by   ,  h .  .  .  . 

attorney,   ,  come.,   and  defend.,    the  wrong  and 

injury,  when,  etc.,  and  say  (as  to  the  amended  declaration)  that 
he  did  not  (neither  did  either  of  them)  promise  and  undertake 
in  manner  and   form  as  the  plaintiff.,    ha....    above  thereof 

complained     against     .  .h ;     and     of     this     ..he put 

sel upon  the  country,  etc. 

Admitting  part  of  claim 

(Commence  and  conclude  as  in  Section  1223)  That  as  to  all 
the  several  supposed  promises  in  the  said  deelaration  mentioned, 
except  as  to  the  sum  of dollars,  parcel  of  the  sev- 
eral sums  of  money  in  the  said  declaration  mentioned,  says  that 
he  did  not  promise  in  manner  and  form  as  the  plaintiffs  have 
above  complained  against  him,  the  defendant. 

1224  Maryland 

1.  That  the  defendant  never  promised  as  alleged. 

2.  And  for  a  second  plea,  the  defendant  says  that  he  was 
not  indebted  as  alleged. 

253Hoereth  v.  Franklin  Mill  Co., 
30  m.  151,  157  (1863);  Sec.  46, 
Practice  act  1907   (111.). 


ASSUMPSIT  603 

1225  Mississippi 

Comes  the  defendant,    ,  and  for  a  plea  to  the 

declaration  filed  against  him  in  above  styled  cause  says  that  he 
did  not  undertake  and  promise  and  is  not  indebted  to  the  plain- 
tiff as  alleged  in  said  declaration ;  and  of  this  he  places  himself 
upon  the  country. 

1226  Virginia 

And  the  said  defendant,  by  its  attorney,  comes  and  says,  that 
it  did  not  undertake  and  promise  in  manner  and  form  as  the 
said  plaintiff  hath  above  complained.  And  of  this  the  said 
defendant  puts  itself  upon  the  country. 

1227  West  Virginia 

The  defendant,   ,  comes  and  defends  the  wrong 

and  injury  when,  etc.,  and  says  that  he  did  not  promise  in  the 
maimer  and  form  as  the  plaintiff  has  above  thereof  complained 
against  him;  and  of  this  he  puts  himself  upon  the  country. 

P-  d. 

NOTICE  WITH  GEXERAL  ISSUE  AND  GROUNDS  OF  DEFENSE 

1228  Check,  plaintiff  not  innocent  holder,  notice  (111.) 

The  plaintiff.  .  lu-n-in  will  take  notice  that  upon  the  trial  of 
this  cause  the  defendant.  .  will  offer  proof  of  the  following  facts 

as  a  part  of  defense  under  said  general  is.sue ; 

that  at  the  time  of  the  drawing  of  said  check  in  said  declaration 
mentioned  on  C,  bankers,  the  defendant.,  w.  .  .  .  a  general  de- 
positor. .  in  said  bank,  and  had  sufficient  moneys  therein  to  pay 

said  check ;  that  for convenience caused  said 

check  to  be  certified  by  said  C,  which  was  done  by  said  bankers 

and then  and  there,  on  the day  of , 

19.  .,  delivered  said  certified  check  to  D,  of in 

payment  of accepted  draft  drawn  upon 

for  the  sum  of   dollars,  which  draft  was  in  the 

hands  of  said  D  for  collection  against  this  defendant. 

This  defendant. .  further  say. .  that  on  the and 

days  of   there  was  what  is  known 

as  a  clearing-house  association  for  banks  in  the  city  of 

through    which    various    checks    drawn    upon    various    banks 

doing  business  in  the  city  of   ,  were  cleared  and 

paid;  that  the  plaintiff...  A,  was  a  member  of  said  clearing 
house  association,  and  as  such  for  a  sufficient  con.sideration 
had  contracted  with  said  C,  non-member.  .  of  said  clearing- 
house association,  to  act  as  their  clearing  house  agents,  and 
to  pay  all  such  checks  as  would  be  drawn  against  said  C,  by 
its  depositors,  among  others,  this  defendant.  .  ;  that  in  accor- 


604  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

dance  with  this  arrangement  said  D  in  due  course  of  clearing- 
house business,  on  said day  of ,  pre- 
sented said  check  for  payment  at  said  clearing-house,  and  the 
said  check  was  paid  to  said  D  in  due  course  of  clearing-house 
business  by  said  C,  on  behalf  of  said  H,  and  so  stamped  as  paid ; 
and  this  defendant.  .  in  due  course  of  business  received  from 
said  D  the  accepted  draft  for  which  said  check  was  delivered  to 
it  by  this  defendant.  .. 

That  at  no  time  did  said  check  become  the  property  of  said 
plaintiff.  .  ;  that  when  said  cheek  thereafter  remained  in  the 
possession  of  said  plaintiff.  .  it  held  it,  not  as  holder  or  owner 
thereof,  but  as  the  custodian  of  said  paid  check  for  C ;  and 
this  defendant. .  says  that  at  the  time  of  the  payment  of 
said  check  by  said  plaintiff.  .  on  behalf  of  said  C,  tliere  was 
still  sufficient  money  on  deposit  for  the  use  of  tiiis  defendant 
to  pay  for  said  check,  and  that  as  to  the  extent  of  the  amount 
represented  by  said  check,  said  plaintiff.  .  has  the  right  to 
demand  from  said  C  the  amount  represented  by  said  check; 
that  said  plaintiff.  .  is  not  an  innocent  holder  of  said  cheek, 
but  received  and  paid  the  same  as  the  agents  of  C,  and  now 
hold.,  the  same  as  creditors  of  said  C,  without  any  liability 
accruing  to  it  from  this  defendant...  Wherefore,  this  defen- 
dant. .   prays  judgment  on   .  .    behalf,  etc. 


1229  Grounds  of  defense  (Va.) 

The  said  defendant  by  his  attorney,  at  the  request  of  the 
plaintiff,  files  this,  his  statement  of  grounds  of  his  defense 
to  this  action. 

1.  The  defendant  is  not  liable  in  any  amount  whatever 
to  the  plaintiff. 

2.  The    plaintiff    proposed    to    build    a     in 

question  within days  from  the day  of 

and   the   purchase   price   of    dollars   was   to   be 

liquidated  at  the  rate  of   per  month   beginning 

with  the  delivery   of    ,   and  the  plaintiff  was  to 

furnish  all  materials,  and  labor  for  the  construction  of  the 
same,  and  was  to  submit  before  beginning  work  on  said 
to  the  defendant,  for  his  approval  and  accep- 
tance, specifications  and  plans ;  all  of  which  the  plaintiff  utterly 
and  wholly  failed  to  do. 

And  other  grounds  which  may  be  assigned  at  the  trial. 
Dated,  etc. 

By 

his  attorney. 


ASSUMPSIT  605 

INSURANCE 

1230  Generally 

In  Michigan  a  special  rule  of  court  requires  the  defendant 
company  to  give  notice  of  all  misrepresentations  or  warranties 
not  contained  in  the  policy  of  insurance  that  it  expects  to  urge 
in  defense  on  the  trial;  and  if  no  such  notice  is  given,  the  de- 
fense is  waived. -5^  A  defendant  insurance  company  must  con- 
fine itself  to  the  specific  fraud  that  is  alleged  in  its  notice  of 
special  defense.-^^ 

1231  Cancelation  and  other  defenses,  notice  (Mich.) 

To  the  above  named  plaintiff,  and  to his  attorney: 

You  will  please  take  notice  that  on  the  trial  of  the  above 
entitled  cause,  the  defendant  will  give  in  evidence,  and  insist 
in  its  defense,  under  the  general  issue  above  pleaded,  the 
following  facts  and  circumstances,  tending  to  show  and  show- 
ing that  the  policy  mentioned  in  plaintiff's  declaration  was 
canceled  and  null  and  void  before  the  occurring  of  the  fire 
and  loss  mentioiifd  in  said  declaration,  and  for  the  following 
among  other  reasons: 

1.  Because  said  policy  numbered    of    

,    of    ,    was    ordered    canceled,    and    was 

canceled,  on  or  about  the day  of , 

19.  .  ;  that  verbal  notice  of  such  cancelation  was  served  upon 

said     ,    plaintiff,    of     ,     by    special 

agent,     representing    the    defendant    company, 

prior   to   the    time    above    mentioned,    and   said    verbal   notice 

was  confirmed  by  notice  in  writing  sent  to  said    

by  registered  mail,  and  of  the  receipt  of  which  said  written 
notice  this  defendant,  by  its  agents,  hold  the  post  office  re- 
ceipt of  the  said Said  notice  having  been  given 

pursuant  to  the  provisions  of  the  policy  following:  "This 
policy  shall  be  canceled  at  any  time,  at  the  recjuest  of  the 
insured;  or  by  the  company,  by  giving  five  days'  notice  of 
such  cancelation.  If  this  policy  shall  be  canceled  as  herein- 
before provided,  or  become  void,  or  cease,  the  premium 
having  been  actually  paid,  the  unearned  portion  shall  be  re- 
turned, on  surrender  of  this  policy,  or  last  renewal,  this  com- 
pany retaining  tlie  customary  short  rates;  except  that  when 
this  policy  is  canceled  by  this  company,  by  giving  notice,  it 
shall  retain  only  the  pro  rata  premium." 

2.  That  said  policy  at  the  time  of  the  fire  was  null  and 
void,  not  only  because  it  had  been  duly  canceled,  but  because 

254  Home   Ins.    Co.    v.    Curtis,    32  Pro.    Assn.,    118     Mich.     431,     432 

Mich.    402,    403    (1875);    Hann    v.  (1898);   Circuit  Court  Rule  7d. 

National   Union,   97   Mich.   513,   521  255  Panfrborn    v.    Continental    Ins. 

(1893);   Baker  v.  Michigan  Mutual  Co.,  62  Mich.  638,  640  (1886). 


606  ANNOTATED   FORMS   OF   PLEADING    AND    PKACTICE 

no  consideration  whatever,  was  ever  received  by  the  defendant 
company  for  it,  and  that  the  company  never  received  any 
premium  on  account  of  the  issuing  of  said  policy. 

3.  That  said  policy  was  null  and  void  because  the  same 
was  fraudulently  issued,  and  the  issuing  and  delivering  thereof 

was  procured  by  means  of  fraud  and  deceit ;  that  one , 

who  had  been  agent  for  other  insurance  companies,  and  who 
had  issued  policies  and  collected  premiums  for  such  com- 
panies, and  who  had  not  remitted  to  his  companies,  procured 
himself  to  be  appointed  agent  for  this  defendant,  and  also  for 

the    ,   of    ,    ,   and   then 

fraudulently  and  deceitfully  conspiring  with  the  agents  of 
said  former  companies,  canceled  said  first  policies  and  rewrote 
the  risk  aforesaid  in  defendant  company,  without  remitting 
any  jDremium  therefor  to  defendant  company ;  and  that  as 
soon  as  the  matter  came  to  the  knowledge  of  defendant  com- 
pany, by  its  agents  at  said  policy  was  canceled 

as  set  forth  in  the  special  notice  above  mentioned;  and  said 
had  full  notice  of  said  cancelation,  and  con- 
sidered and  treated  said  policy  as  null  and  void,  and  took  other 
insurance  instead. 

4.  The  defendant  will  also  show  under  the  general  issue 
above  pleaded,  tiiat  the  alleged  proftfs  of  loss  were  incomplete, 
as  they  do  not  show  a  detailed  statement  of  the  loss,  nor  does 
the  same  contain  a  certificate  of  the  magistrate  or  notary  public, 
and  also  that  the  amount  of  the  loss  is  not  truly  stated  therein. 

5.  The  defendant  will  also  show  under  tlie  general  issue  above 
pleaded,  that  said  property  mentioned  in  said  policy  was  fraudu- 
lently, grossly  overinsured,  and  even  iiad  the  policy  not  been 
canceled  it  would  have  been  null  and  void. 

Yours,  etc. 


Attorneys  for  defendant, 


1232  Cause  of  fire,  notice  (Mich.) 

You  will  please  take  notice  that  on  the  trial  of  this  cause, 
the  said  defendant  will  give  in  evidence  under  the  general  issue 
above  pleaded  and  insist  in  its  defense  that  if  the  property 
mentioned  in  the  said  plaintiff's  declaration  and  for  the  re- 
covery of  which  this  suit  is  brought,  was  damaged  or  destroyed 
by  fire  and  which  said  property  it  is  alleged  was  insured  against 
loss  or  damage  by  fire  by  the  said  defendant,  that  said  fire  was 
caused,  started  and  set,  either  by  the  said  defendant  or  at  his 
instance  or  request,  and  that  said  property  if  it  was  damaged 


ASSUMPSIT  60  < 


nr  destroyed  by  fire,  was  damaged  or  destroyed  for  the  reason 
^hafthe  plaintiff  either  set  fire  to  it  or  caused  the  same  to  be  set. 


Dated,  etc 

To  •  • 

Attorneys  for  plaintiff. 


1233  Increased  hazard,  etc.,  notice  (Mich.) 

You  will  please  to  take  notice  that  on  the  trial  of  this  cause 
the  said  det-endant  will  give  in  evidence  and  insist  under  the 
leneral  issue  above  pleaded  that  at  the  time  said  proper  y  for 
which    he  plaintiff  seeks  to  recover  in  this  case  and  which  it  is 
alleged  in  ?he  declaration  of  said  plaintiff'  was  insured  by  the 
said  defendant,  against  loss  or  damage  by  fire  at  the  time  it 
V  s  so1eloyed,!f  it  ever  was  so  f^troj.d  said  plaintiff  was 
illegally  engaged  in  the  business  of  a  retail  l^^l^^o^^^^^^'^^^'^'^i^^ 
ra?v  to  the  laws  of  the  state  of  Michigan  and  contrary  to  the 
cTms  of  the  policy  which  it  is  alleged  the  plaintiff  had  upon 
said  property  at  the  time  it  was  damaged  and  destroyed  by  fire, 
or  uDon  a  large  portion  of  said  property,  whereby,  said  insur- 
anceClicy  1  pon^vhich  this  suit  is  brought,  if  there  ever  was 
any  such  policy,  had  become  and  was  absolutely  null  and  void 
and  of  no  force  or  effect  whatsoever.  .u    *  •  i    f  ti^ic 

2  You  will  please  take  further  notice  that  on  the  trial  of  this 
cause  the  sa  d  defendant  will  give  in  evidence  and  insist  under 
Se  mineral  ssue  above  pleaded,  that  a  large  portion  of  the  prop- 
er ywlic  tie  plaintiff  seeks  to  recover  for  in  this  case,  was 
dfsille  brewed,  fermented  and  malt  liquors  and  wine  and 
S  said  pTa  ntiff  was  a  retail  li.iuor  dealer  under  the  laws 
0  the  UniS  States  and  that  the  special  tax  under  the  laws  of 
?he  United  States  upon  the  business  of  retail  li.iuor  dealers, 
becomes  due  and  pa^.lble  on  the  first  day  of  July  of  each  year 
andThat  s"d  plafnt'iff  failed  and  neglected  jo  pay  said  special 

tax  which  became  due  and  payable  on  the  first  day  ot •  -  • , 

19       Td  that  therefore,  being  engaged  in  the  business  of  a 
retail  ^luor  dealer  as  aforesaid,  said  plaintiff  was  carrying  on 
sad    business    unlawfully,    at    the    time    said    property    ^^as 
"elo^^rbTfire  as  alleg'ed  in  the  declaration  of  s.id  p  aintiff 
in  this  cause   if  it  ever  was  so  destroyed.     By  reason  \\nereoi, 
the  hazard  of  insurance  against  loss  or  damage  by  fire  upon 
said  property  was  increased,  contrary  to  a  condition  in  said 
nolcy  which  provides.  "Or  if  the  hazard  be  increased  by  any 
means  wi     in  fhe  control  or  knowledge  of  the  insured,  '  and  that 
Taid  hazard  was  increased  by  means  within  the  control  or  knowl- 
ed^e  of  the  said  plaintiff.     Wherefore  said  policy  became  and 
wa?  entire'v    null    and   void    at   the   time    said    property   was 
Istroved  as  alleged  in  the  plaintiff's  declaration  in  this  cause, 

''3    Ton':^n^tZTo'i.^.e  further  notice  that  on  the, trial 
of  this  causl  thrsa^d  defendant  will  give  in  evidence  and  insist 


608  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

in  its  defense  under  the  general  issue  above  pleaded,  that  if 
Baid  defendant  ever  made  and  delivered  to  the  said  phiintitf 
the  insurance  policy  mentioned  and  described  in  said  plaintilf's 
declaration  in  this  cause,  the  same  was  made  and  delivered  by 
the  said  defendant  upon  the  express  condition  therein  set  forth, 
that,  "This  entire  policy  shall  become  void  if  the  hazard  be 
increased  by  any  means  within  the  control  or  knowledge  of 
the  insured."  That  at  the  time  said  policy  was  issued  and 
delivered  by  the  said  defendant  to  the  said  plaintiff,  if  any 
such  policy  was  ever  issued  and  delivered,  as  aforesaid,  the  said 
plaintiff  was  engaged  in  the  business  of  a  retail  dealer  of  spirit- 
uous or  intoxicating  liquors  and  brewed  malt  and  fermented 
liquors  and  was  selling  and  disposing  of  said  li(iuors  by  the 
drink  and  in  (juantities  of  three  gallons  or  less  or  one  dozen 

quart  bottles  or  less  at  any  one  time,  at  tlie  village  of 

in  said  county.  That  all  the  property  mentioned  and  described 
in  the  declaration  in  this  cause  aJid  which  is  averred  to  have 
been  insured  by  said  insurance  policy,  was  then  situate  in  the 
building  in  which  said  retail  liquor  business  was  carried  on  by 
said  plaintiff  as  aforesaid,  and  in  the  adjoining  and  connecting 
additions  thereto,  mentioned  in  said  plalntilT's  declaration  in 
this  cause,  which  said  building  and  the  adjointing  additions 
thereto  were  then  occupied  by  said  plaintiff  as  a  sidoon  in  which 
said  li(iuor  business  was  carried  on  by  him  and  as  the  dwelling 

house  of  said  plaintiff.    That  on,  to  wit,  the day  of 

,    19..,    the   said   plaintiff   neglected,    failed    and 

refused  to  pay  the  annual  tax  upon  said  business  of  retail  licjuor 

dealer  at  the  village  of ,  aforesaid,  and  said  annual 

tax  upon  sjiid  business  of  retail  li(|Uor  dealer  was  not  paid  by 
the  said  plaintiff  but  was  still  unpaid  at  the  time  the  said  plain- 
tiff   alleges    that    said    property    was    burned,    consumed    and 

destroyed  by  fire,  to  wit,  on  the day  of 10.  .  . 

By  reason  whereof,  the  hazard  assumed  and  undertaken  by 
said  defendant  when  said  insurance  policy  was  issued  and  deliv- 
ered, w^as  increased  by  means  within  the  control  or  knowledge 
of  the  said  plaintiff  and  without  the  knowledge  of  the  said 
defendant,  and  said  insurance  policy  if  any  was  ever  issued  by 
the  said  defendant  to  the  said  plaintiff,  became  and  was  void 
at  the  time  said  property  in  said  policy  of  insurance  mentioned, 
was  burned,  consumed  and  destroyed  as  averred  in  said  plain- 
tiff's declaration  in   this  cause,   to  wit,  on  the    

day  of ,19... 

1234  General  defenses  (fire  insurance)  notice  (111.) 

The  plaintiff  in  the  above  entitled  cause  will  take  notice,  that 
the  defendant,  under  the  plea  of  the  general  issue,  will  rely 
on  and  prove  the  following  matters  of  defense,  namely : 

1.  That  the  plaintiff  did  not  at  the  time  of  the  beginning 
of  this  suit  have  any  right,  claim  or  demand  of  any  kind  or 


ASSUMPSIT  609 

description  whatsoever  against  the  defendant,  except  whatever 
right,  claim  or  demand  the  plaiutifi'  then  had,  if  any,  against 
the  defendant  under  and  by  virtue  of  a  certain  policy  of  insur- 
ance issued  by  the  defendant  to  the  plaintiff,  bearing  date  the 
day  of ,  ID... 

2.  That  the  plaintiff  did  not  have  any  interest  in  the  prop- 
erty insured  by  the  said  policy,  or  any  part  thereof,  at  the  time 
of  the  tire  mentioned  in  the  declaration  in  said  cause. 

3.  That  the  due  proportion  of  the  loss  or  damage  sustained 
by  the  assured,  provided  by  said  policy  to  be  paid  by  the  defend- 
ant did  not  and  does  not  exceed  the  sum  of dollars. 

4.  That  the  amount  of  loss  or  damage  to  the  plaintiff  by 
reason  of  such  fire,  estimated  according  to  the  actual  cash  value 
of  the  insured  property  at  the  time  of  the  fire,  did  not  exceed 

the  sum  of dollars,  and  that  the  amount  it  would 

then  cost  to  repair  or  replace  the  same,  deducting  therefrom  a 
suitable  amount  for  deterioration  from  use  or  otherwise,  did  not 
exceed  the  sum  of  dollars. 

5.  That  the  said  plaintiff,  did  not  give  notice  in  writing 
to  defendant  of  the  said  loss,  immediately  after  the  said  fire, 
and  did  not  render  to  the  defendant  a  particular  account  of  said 
loss  in  writing  precisely  stating  the  time,  origin  and  circum- 
stances of  the  fire,  the  occupancy  of  the  building  insured,  or 
containing  the  property  insured,  other  insurance,  if  any,  and 
the  copies  of  all  policies  and  the  value  and  o\\'nership  of  the 
property,  or  the  amount  of  loss  or  damages,  according  to  the 
terms,  conditions  and  provisions  of  said  policy. 

6.  The  said  plaintiff  did  not,  according  to  the  terras  of  said 
policy,  place  the  property  damaged  by  the  said  fire  in  the  best 
possible  order,  and  make  an  inventory  thereof,  naming  the 
quantity  and  cost  of  each  article;  and  no  appraisement  was  had 
or  requested  by  the  said  plaintiff  as  re(iuired  ])y  said  policy. 

7.  The  said  loss  and  damage  to  the  plaintiff  by  the  said  fire 
was  caused  by  the  neglect  of  the  said  plaintiff  to  use  all  prac- 
ticable means  to  save  and  preserve  the  insured  property  from 
damage  at  and  after  the  said  fire,  and  by  the  neglect  and  fail- 
ure of  the  plaintiff  to  observe  the  laws  and  ordinances  made 
to  prevent  accident  by  fire. 

8.  The  said  loss  and  damage  to  the  plaintiff  by  the  fire  afore- 
said, was  caused  and  produced  by  the  working  of  carpenters 
or  other  mechanics  in  the  said  building,  altering  or  repairing 
the  said  premises  without  the  permission  of  the  defendant  for 
the  doing  of  such  work  being  first  endorsed  in  waiting  on  the 
said  policy. 

9.  That  said  policy  of  insurance  was  canceled  and  annulled 
by  the  defendant  under  the  terms  and  provisions  of  said  policy 
prior  to  said  fire. 

10.  That  the  said  plaintiff  in  his  application  for  the  said 
policy,  made  erroneous  representations  as  to  the  said  insured 
property,  which  were  then  untrue,  and  also  omitted  to  make 


610  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

known  to  the  defendant  facts  within  his  knowledge  material  to 

11.  After  the  issue  of  the  said  policy  the  plaintiff  obtained 
other  insurance  on  the  said  insured  property  without  the  con- 
sent of  this  defendant  endorsed  on  said  policy. 

12.  Said  risk  was  increased  after  the  issue  of  said  policy  by 
means  within  the  control  of  the  said  plaintiff. 

13.  The  premium  mentioned  in  said  policy  was  never  paid 
by  the  plaintiff,  and  the  defendant  never  waived  such  payment. 

14.  Before  said  fire,  the  defendant  demanded  of  plaintiff 
the  return  of  said  policy  for  cancelation,  and  offered  to  pay  the 
return  premium  due,  upon  such  cancelation,  according  to  the 
terms  of  said  policy :  but  said  plaintiff  refused  to  comply  with 
such  a  demand. 

15.  After  the  issue  of  the  said  policy,  and  before  the  said 
fire,  the  title  to  the  said  insured  property,  and  the  possession 
thereof,  were  changed  by  legal  process,  judicial  decree  and 
voluntary  transfer  or  conveyance ;  and  at  the  time  of  said  fire, 
said  property  was  not  owned  by  the  plaintiff. 

16.  After  the  issue  of  the  said  policy  and  before  the  said 
fire,  the  title,  interest,  location  and  possession  of  said  insured 
property  was  changed  in  divers  ways  other  than  succession  by 
reason  of  the  death  of  the  assured. 

17.  The  said  policy  was  assigned  by  the  plaintiff  prior  to 
the  said  fire  without  the  consent  of  the  defendant  endorsed 
thereon. 

18.  At  the  time  of  the  issue  of  said  policy  and  also  at  the 
time  of  the  said  fire,  the  said  plaintiff  was  not  the  entire  and 
sole  owner  of  the  said  insured  property. 

19.  At  the  time  of  the  issue  of  the  said  policy,  and  at  the 
time  of  the  said  fire,  the  plaintiff  was  not  the  owner  in  fee  simple 
of  the  land  on  which  said  insured  building  then  stood. 

20.  At  the  time  of  the  issue  of  said  policy,  the  said  insured 
property  was  mortgaged  without  notice  to  this  company,  and 
without  the  consent  of  the  defendant  endorsed  on  said  policy. 

21.  After  the  issue  of  the  said  policy  the  said  property  became 
mortgaged  without  notice  to  this  defendant  and  without  the 
consent  of  this  defendant  endorsed  on  said  policy. 

22.  The  said  insured  property  was  at  the  time  of  the  issue 
of  said  policy  a  manufacturing  establishment,  and  so  remained 
to  the  time  of  said  fire,  and  the  same  was  run  by  the  plaintiff 
after  the  issue  of  said  policy  over  time  and  extra  time  without 
special  agreement  therefor  endorsed  on  the  said  policy. 

23.  After  the  issue  of  the  said  policy  and  before  said  fire, 
gun  powder,  fire-works,  phosphorus,  camphene,  naphtha,  ben- 
zene, benzole,  chemical,  crude  and  refined  coal  oils,  and  earth 
oils,  or  one  or  more  of  the  said  articles  were  kept  and  used  by 
the  plaintiff  on  the  said  insured  premises  without  the  written 
consent  of  the  defendant,  contrary  to  the  provisions  of  the  said 
policy. 


ASSUMPSIT  611 

24.  After  the  issue  of  the  said  policy  and  before  the  said 
fire,  said  plaintiff  used  unclosed  kerosene  lamps  on  the  said 
premises,  and  the  same  were  so  used  on  and  in  the  said  prem- 
ises by  the  plaintiff*  without  the  knowledge  or  consent  of  the 
defendant. 

25.  The  said  insured  premises  became  vacated  after  the  issue 
of  the  said  policy  without  notice  to  the  defendant  and  without 
its  consent  endorsed  thereon. 

26.  The  plaintiff  did  not  furnish  to  the  defendant  at  its 
office,  notice  and  proof  of  the  said  loss  sixty  days  prior  to  the 
beginning  of  this  suit. 

27.  Said  plaintiff  failed  to  comply  with  the  provisions  of 
said  policy  concerning  the  giving  and  furnishing  of  notice  and 
proofs  of  loss. 

28.  The  said  plaintiff  wholly  failed  to  keep  and  perform  or 
comply  with  the  terms,  conditions  and  provisions  of  the  said 
policy  and  every  of  them  on  his  part  to  be  kept  and  performed 
or  complied  with. 

29.  No  notice  of  loss  under  the  said  policy  was  received  at 
the  office  of  the  said  defendant  as  much  as  sixty  days  before 
the  beginning  of  this  suit. 

30.  No  proofs  of  loss  under  said  policy  were  received  at  the 
office  of  this  defendant  as  much  as  sixty  days  before  the  begin- 
ning of  this  suit. 

31.  The  said  insurance  was  terminated  at  the  request  of  this 
defendant,  before  said  fire. 

32.  The  said  insurance  was  terminated  at  the  option  of  this 
defendant,  and  notice  of  such  termination  Avas  given  to  the 
defendant  by  the  plaintiff,  before  the  said  fire,  and  tlie  defend- 
ant before  the  said  fire  tendered  the  ratable  proportion  of  the 
premium  for  the  unexpired  term  of  the  policy. 

33.  The  said  policy  was  canceled  at  the  option  of  the  defend- 
ant, and  notice  of  such  cancelation  was  given  to  the  plaintiff 
by  the  defendant  before  said  fire,  and  the  defendant  was  ready 
at  the  time  of  such  cancelation  to  refund  to  plaintiff  a  ratable 
proportion  of  the  premium  for  the  unexpired  term  of  the  said 
policy  and  then  desired  so  to  do,  but  was  then  unable  after  dili- 
gent effort  to  find  the  said  plaintiff  for  the  purpose  of  refund- 
ing or  tendering  such  ratable  proportion  of  such  premium. 

34.  The  plaintiff  has  not  complied  with  the  terms,  conditions 
and  provisions  of  the  said  policy  of  insurance  or  any  part  thereof 
constituting  conditions  precedent  to  the  liability  of  this  defend- 
ant under  said  policy. 

35.  The  interest  of  the  said  plaintiff  in  the  said  insured 
property  was  at  the  time  of  the  issue  of  the  said  policy  less 
than  the  entire  and  sole  ownership  thereof,  which  fact  was  not 
made  known  to  the  defendant,  and  was  not  waived  by  the 
defendant. 

36.  All  and  every  of  the  contingencies  expressed  in  said 
policy  as  contingencies  or  events  under  which  the  defendant 


612  ANNOTATED   FORMS   OF   PLEADING    AND   PILVCTICE 

should  not  be  liable  thereon,  or  thereunder,  happened  or  occurred 
prior  to  the  beginning  of  this  suit. 

37.  No  notice  of  such  loss  or  damage  by  tire,  or  of  said 
fire  was  given  in  writing,  or  otherwise,  to  the  defendant  within 
sixty  days  after  said  fire. 

38.  None  of  the  terms,  conditions  or  provisions  of  said  policy 
have  been  waived  by  the  defendant.- ^« 

(Michigan) 

To   • - 

Attorney  for  plaintiff. 
Sir:     Please  to  t;ike  notice  that  on  the  trial  of  this  cause  the 
above  named  defendant  will  give  in  evidence,  under  the  «;<'iitr;il 
issue  above  pleaded,  and  insist  in  its  defense,  that   the  interest 

of  the  insured  in  the  property  mentioned  in  policy  No , 

agency  at ,  Michigan,  amount  of  policy  $ , 

expiring   ,  19..,  is  and  was  other  than  uncon- 
ditional and  sole  ownership. 

2.  And  the  said  defendant  will  further  give  in  evidenee 
and  insist  on  said  trial  that  the  subject  of  insurance  and  the  prop- 
erty covered  by  said  policy  after  the  issue  thereof,  became  incum- 
bered by  eliattel  mortgaire  and  otherwise  witliout  the  eonsent 
or  knowledge  of  the  company. 

3.  Defendant  will  further  show  that  there  was  a  change  in 
the  interest,  title  and  possession  of  the  subject  of  insurance 
without  the  con.sent  or  knowledge  of  the  company. 

4.  Defendant  will  further  give  in  evidenee  and  insist  in  its 
defense,  that  the  insured  eoncealed  and  misrepresented  material 
facts  and  circumstances  concerning  the  insurance,  l)oth  before 
and  after  the  loss. 

5.  Defendant  will  further  show  that  there  has  been  false 
and  fraudulent  swearing  concerning  and  touehing  matters  and 
things  relating  to  the  loss  sustained  by  the  insured. 

6.  Defendant  will  further  show  that  the  insured  made  false, 
fraudulent  and  dishonest  representations  and  statements,  in 
regard  to  the  property  covered  by  the  policy,  and  the  loss  sus- 
tained thereunder. 

7.  Defendant  will  further  show  that  no  correct  proof  of  loss 
has  ever  been  served  upon  the  company. 

Dated    

Yours,  etc. 

2S6The  reforegoing  notice  is  re-  policy:  the  modern  tendency  is  to 
produced  merely  to  give  an  idea  of  plead  and  urge  only  such  defenses 
the  possible  defenses  that  might  be  as  are  strictly  applicable  to  the  par- 
raised  in  an  action  on  an  insurance  ticular  case. 


ASSUMPSIT  61^ 


1235  other  insurance,  notice  (Mich.) 

defendant  «■,  1  gjve  "f f.^f^^YdVeTeSaTt  ma'le  and  delivered 

c  ntraet  of  insurance,  whether  valid  or  ""t   -  PJ^P-ty      ,- 

inrt  thereof  iu  another  insurance  company,  to  ^Mt,  in  tne  ...  ..^ 
I'-''^  ^'"''J^  ^vhich   la.sl    named   insurance   pohcy 

tvhek'offhe  said  insurance  pilicy  issued  by  the  said  defendant 
and  was  wholly  null  and  vo,d  and  of  no  valuUty  whatcvei. 

1236  Set  off,  notice  (111.) 

And  the  said  defendant . .  hereby  give . .  notice  that  under  the 
above  plea  will  aUo  offer  evidence  of  the  toUow.ng  elann 
against  the  plaintiff  . .  ^^  ^^^ 

sad  pLfntiff°."nd  he  said  defendant. .  entered  into  the  writ- 
ten  agreement\vhich  is  set  out  as  a  contract  i''  ""t'"/ '° Jf" 
ten  agiee         ^^^^^^  ^^.  ^^^^  j^.j,|jja,ion  herein,  as  follows,  to  wit: 

^'iri''fthT:«itruetion  of  the  said  plant  mentioned  in 

il,e  said  contract  the  said  plaintiff. .  represented  and  stated  to 

Ihe  saw  defenda\;. .  that  the  operations  and  efficiency  of  the 

ad  plant  w^uld  be  greatly  P^-o'^^  -d  benefited  by    he  ac- 

"^t^oTSt^"^'^''"""     f~e^^^^^^^^^ 

"aifp  ant  was  to  be  run:  and  that  such  active  co-operation,  as- 


G14  AN-XOTATLD    FORMS   OF    PLtL\DlNli    AM)    l'It.\CTICE 

sistance  and  good  will  of  said  brew  master  would  be  seeiirod  by 
the  payment  to  said  brew  master  of  the  sum  of  one-eighth  of 
one  cent  per  pound  for  each  pound  of  carbonic  acid  gas  manu- 
factured and  sold  from  the  brewery  of  the  said  brewing  com- 
pany in , ,  and  that  if  the  said  amounts 

should  be  delivered  to  .  .h.  .,  the  said  plaint ift'.  .,  .  .he.  .  would 
as  the  agent  of  said  defendant.  .,  deliver  the  same  to  the  said 
brew  master. 

That  the  said  defendant. .  thereupon  relying  upon  said  state- 
ment of  the  said  plaintitf.  ,  delivered  to  the  said  plaintiff.  .  in 
addition  to  the  compensation  of  one-quarter  of  one  cent  per 
pound  for  each  pound  of  carbonic  acid  gas  sold  from  the  said 
brewery,  provided  for  in  said  above  written  contract  to  be  paid 
to  plaintiff..,  the  further  sum  of  one-eighth  of  one  cent  per 
pound  to  be  paid  and  delivered  by  said  plaintiff. .  as  its  agent 
to  said  brew  master. 

That  said  deliveries  of  said  amounts  aforesaid  began  in  the 

month  of    ,  and  thereafter   the  said   defendant.. 

continued  to  deliver  money  to  the  amount  of  one-eighth  of  one 
cent  per  pound  until  and  including  the  month  of 

That  on  the day  of ,  the  said  brew 

master,  theretofore  employed  at  said  brewery  ceased  to  be  longer 
employed  at  the  said  brewery  and  another  brew  master  was 
thereafter  employed,  but  the  said  defendant.,  continued  to 
deliver  to  the  said  plaintiff.  .  the  said  sum  of  one-eighth  of  one 
cent  per  pound  upon  each  pound  of  carbonic  acid  sold  from  said 

brewery,  and  from  the  date  last  aforesaid,  to  wit, , 

the  said  plaintiff.  .  having  as  the  agent  of  said  defendant.  .  as 
aforesaid,  received  the  additional  sum  of  one-eighth  of  one  cent 
per  pound  upon  said  carbonic  aciil  gas  sold  by  said  brewery, 
for  the  purpose  of  delivering  the  same  to  the  said  brew  master, 
nevertheless  did  not  deliver  the  same  to  said  brew  master,  but 
instead  thereof  appropriated  the  same  to  .  .h. .  own  use.  That 
the  said  brew  master  had  no  contract  or  agreement  of  any  nature 

whatsoever  with  the  said  defendant.  .  for  any  payment  to 

of  said  amounts,  and  the  same  were  delivered  to  said 

plaintiff.  .  by  defendant.  .  with  the  belief  on  the  part  of  the  de- 
fendant. .  that  said  sums  were  being  paid  merely  as  a  gratuity 
to  said  brew  master. 

That  the  items  and  account  of  said  deliveries  of  money  by 
said  defendant.  .  to  said  plaintiff.  .  and  the  amount  thereof 
are  as  follows:     (Set  foi-th  account). 

That  during  all  the  period  aforesaid  the  said  plaintiff.  .,  well 
knowing  that  the  said  amounts  of  one-eighth  of  one  cent  per 
pound  were  being  delivered  to  .  .h.  .  by  said  defendant.  .  with 

the  belief  on   part  that  said  amounts  were  being  paid 

by  plaintiff.  .  as agent  to  said  brew  master,  nevertheless 

concealed  from  said  defendant .  .  the  fact  that  .  .  he .  .  w . .  . . 
not  paying  and  did  not  deliver  said  amounts  to  said  brew  master, 
and  the  defendant.  .  did  not  discover  that  said  plaintiff.  .  had 
not  delivered  said  amounts,  but  had  appropriated  the  same  to 


ASSUMPSIT 


615 


h. .  own  use,  until,  to  wit,  the  month  of  ....... ...,  19. .,  and 

thereupon  the  said  defendant,  .demanded  of  the  said  plaintitt.  . 
that  repay  to  said  defendant.  .  the  amounts  so  retained 
by  plaintiff..,  but  the  plaintiff.,  refused  so  to  do,  claiming 
that  ..he.,  w the  owner.,  of  said  amounts  and  entitled 

to  retain  the  same.  •    -,  vx  j  x    xv,        -a 

That  the  said  plaintiff. .  thereby  became  indebted  to  the  said 

defendant.  .  for  money  had  and  received  to  and  for  the  use  of 

the  said  defendant .  .  in  the  sum  of   dollars,  and 

beint'  so  indebted  the  said  plaintiff. .  became  obligated  to  pay 
the  lame  to  the  said  defendant..,  but  the  said  plaintiff.., 
although  heretofore  often  requested  to  pay  the  same  to  said 
defendant..,  ha.,  not  paid  the  same  nor  any  part  thereof  to 
said  defendant.  .,  and  retain. .  the  said  amounts  in  .  .h. .  oavti 
hands,  to  the  damage  of  the  defendant. .  in  the  sum  ot 

dollars.  ,         ,         •  j  4. 

Wherefore  the  said  defendant. .  pray.  .  that  the  said  amount 
may  be  set  off  and  allowed  to  the  said  defendant .  .  as  against 
any  sum  found  due  to  the  plaintiff. .,  if  any  be  found,  and  in 
satisfaction  thereof,  and  that  for  the  excess  of  said  set  off  over 
any  sum  found  to  be  due  to  the  plaintiff.  .  from  the  defendant.  . 
the  said  defendant.,  may  have  judgment  against  plaintiff.., 
with costs  herein  incurred. 

(Michigan) 

Please  to  take  notice,  that  the  said  defendant.  .  will,  on  the 
trial  of  this  cause,  insist  upon  and  give  in  evidence  under  the 
general  issue  above  pleaded,  that  before  and  at  the  time  of  the 

commencement  of  this  suit,  the  said  plaintiff and 

still       indebted  to  the  said  defendant.  .  in  the  sum 

of  ' ' '.'.'.'.'.'. . .  dollars,  for  the  price  and  value  of  goods  before 
then'soid  and  delivered  by  the  defendant.,  to  the  plaintiff.. 

at       request.     And  in  a  like  sum  for  the  price  and  value 

of  work  then  done,  and  materials  for  the  s.ime  provided  by  the 

defendant. .  for  the  plaintiff.  .,  at re<iuest ;  and  in  a  like 

sum  for  the  price  and  value  of  work  then  done  by  the  defend- 
ant. .  for  the  plaintiff.  .,  at request;  and  in  a  like  sum 

for  the  monev  then  lent  by  the  defendant.,  to  the  plaintitt.., 
at  request;  and  in  a  like  sum  for  money  then  paid  by 

the  defendant. .    for  plaintiff.  .,  at   request ;  and  in  a 

like  sum  for  money  then  received  by  the  plaintiff.  .  for  the  use 
of  the  defendant.  .  ;  and  in  a  like  sum  for  money  then  found 
to  be  due  from  the  plaintiff.  .  to  the  defendant.  .,  on  an  account 
stated  between  them ;  and  in  a  like  sum  for  the  use  of  money 
then  due  from  the  plaintiff.,  to  the  defendant..,  and  by  the 

defendant.,    forborne    to    the    plaintiff..,    at    request. 

Which  said  several  sums  of  money,  or  so  much  thereof  as  wiU 
be  sufficient  for  that  purpose,  the  said  defendant .  .  will  set  off 
and  allow  to  the  plaintiff. .  against  any  demand  or  demands  of 


GIG  ANNOTATED   FORMS  OF   I'LiLVDlNG    AM>   I'KACTlCi: 

said  plaintiff. .  to  be  proved  by on  said  trial,  and 

have  the  balance  certified  in  favor. 

Dated,  the day  of ,  1 

Yours,  etc., 

Attorney  for  defendant. . 

To 

Attorney  for  i)laiutitY.^'^ 

1237  Use  and  occupation 

Under  the  general  issue  to  the  common  counts  for  use  and  oc- 
cupation, the  defendant  may  siiow  the  substitiition  of  a  new 
agreement  for  the  one  sued  upon,  in  .Mii-higan,  if  daIllil^'••s 
are  claimed  by  way  of  recoupment,  notice  of  such  a  claim  must 
be  added.-^**  So,  the  defense  that  the  premises  were  untenant- 
able cannot  be  shown  in  that  .state  under  the  general  issue 
alone.-^'* 

AFFIDAVIT  OF  DEFENSE  OK  MERITS 

1238  Illinois,  necessity 

A  plea  may  Ite  strieken  from  the  lilrs  for  want  of  an  atli- 
davit  of  merits;  and  in  case  tlir  plea  is  stricken  from  the  tiles, 
the  plaintiff  is  entitled  to  judgment  by  default.-"" 

1239  Illinois,  affidavit 

(Venue) 

being  fii-st  duly  sworn  depose.,    and  say.. 

that  .  .he the  defendant.  .  in  the  above  entitled  cause, 

257  In  caso  of  sot  off  foninlcil  upon  iiifj  affl.lavit,  tho  jilnintiff,  or  some- 
an  open  account  or  account  stated,  one  in  his  behalf  must,  within  ten 
the  defendant  may  annex  to  his  days  after  service  of  a  copy  of  the 
plea  or  notice  of  set  off,  a  copy  of  defendant 's  plea  and  aflidavit,  in 
the  account  and  may  make  an  atli-  circuit  courts,  and  before  trial  in 
davit,  by  himself  or  by  someone  in  other  cases,  make  an  allidavit  de- 
his  behalf,  showing  the  amount  or  nying  said  set  otf  or  any  portion 
balance  claimed  by  him,  or  that  thereof  and  his  indebtedness  or  li- 
such  amount  or  balance  is  justly  ability  thereon,  and  must  serve  a 
owing  and  due  to  him,  or  that  he  copy  of  such  atiidavit  upon  the  de- 
is  justly  entitled  to  have  such  ac-  fendant  or  his  attorney.  (10191), 
count  or  balance  set  off  against  the  C  L.  1897  (Mich.), 
claim  made  by  the  plaintiff;  a  copy  -'.".h  Conkling  v.  Tuttle,  52  Mich, 
of  which  account  and  atfidavit,  with  6.!(),  632  (1884). 
a  copy  of  the  plea  and  the  notice,  259  Holmes  v.  Wood,  88  Mich, 
must  be  served  upon  the  plaintiff  435,  438  (1891). 
or  his  attorney.  (10191),  C.  L.  200  New  York  National  Exchange 
1897  Mich.  Bank    v.    Keed,    232    111.    123,    125 

Upon  the  making  of  the   forego-  (1908). 


ASSUMPSIT  617 

and  that  .  .he. .  verily  believe. .  that  .  .he. .  ha. .  a  good  defense 
upon  the  merits  as  to  the  whole  of  the  said  pla.ntift. .  demand. 

Defendant. 
Subscribed,  etc. 

Notary  Public. 

Co-defendant 

(Venue)  ^^,^^  ^^^^  ^^^^^^  ^^^^^^^  deposes  and  says  that 

he  "is  one  of 'the  defendants  in  the  above  entitled  cause  and  makes 
this  affidavit  for  himself  and  for  and  on  behalf  of  and  at  the 
special  re(iuest  of  his  said  co-defendant,   ...........;  affiant 

further  savs  that  he  verily  believes  that  he  and  said  .      ••••••• 

and  each  of  them  have  a  good  defense  on  the  merits  to  the  whole 
of  the  said  plaintiff's  demands. 

Subscribed,  etc. 

1240  Maryland 

I  hereby  certify  that  on  this :  •  •  '\^>\°^ ;  •  V ' 

19        before  me,  the  sul)scriber,  a  justice  ot  the  peace  ot  the 

si'te  of  Maryland,  in  and  for county,  personally 

qnn.^ired  ,  administratrix  c.  t.  a.  ot •  •, 

deceased,'  and'  made  oath  in  due  form  of  law  that  every  plea 
so  pleaded  by  her  is  true,  and  that  she  does  not  admit  the  plain- 
titrs  claim,  or  any  part  of  the  same,  to  be  due  --\ --ng  and 
that  the  whole  amount  of  said  claim  is  disputed;  that  she  has 
a  bona  tide  intention  of  making  defense  and  contesting  the  right 
of  the  plaintiff  to  judgment  in  this  cause;  that  she  does  not 
resist  the  entrv  of  judgment  for  delay  or  for  the  purpose  of 
gWhigpriority  to  others,  and  that  she  is  advised  by  counsel  to 
file  said  pleas. 

Justice  of  the  peace. 

CounseVs  certificate 

This  is  to  certify  that  I  advised   to  make  the 

foregoing  oath,  and  to  tile  said  plea. 

Defendant's  attorney. 


618 


ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 


\^       o 


« 


•r  4" 


a 

^    41  __. 
O)    >^    C 


K 

:< 


s 


Co-defendant 

(Venue) 

On  this day  of  ,  11) .  . ,  before  me, 

the  subscriber,  a    of  tlie  state  of  Maryland,   in 

and  for county,  personally  appeared   , 

one  of  the  above  named  defendants  and  made  oatli  in  due  form 
of  law,  that  every  plea  above  pleaded  is  true,  that  no  jKirt  of 
the  plaintilY's  demand  is  admitted  to  be  due  or  owing,  but  that 
the  whole  of  plaintilf's  claim  is  disputed;  and  further  that  he, 
the  affiant,  believes  the  defendants  will  be  ai)le  at  the  trial  of 
the  cause  to  produce  sufficient  evidence  to  support  the  said  plea 
and  that  he  is  advised  by  counsel  to  file  said  plea. 


(Official  character) 


Counsel's  certificate 

I  hereby  certify  that  we  advised  the  defendants  making  the 
above  oath  and  tiling  said  plea  to  the  same. 


Attorneys  for  defendants. 


Corporation 

(Venue) 

On  this day  of ,  19 . . ,  before  me, 

the  subscriber,  a  notary  public,  in  and  for  the  city  and  state 

aforesaid,    personally    appeared    ,    president    and 

agent  of  the  defendant  corporation  in  the  above  entitled  cause, 
and  made  oath  in  due  form  of  law  that  every  plea  so  pleaded 
by  the  defendant  is  true ;  and  further,  that  neither  the  defend- 
ant nor  himself  as  president  and  agent  of  said  defendant  cor- 
poration admits  any  part  of  the  plaintiff's  claim  to  be  due 
and  owing,  but  disputes  the  whole  of  said  claim ;  and  further, 
that  he,  the  affiant,  verily  believes  that  the  defendant  will  be 
able  at  the  trial  of  said  cause  to  produce  sufficient  evidence  to 


ASSUMPSIT  619 

support  the  said  pleas  as  to  tlie  whole  amount  of  the  plaintiff's 
claim  disputed  by  the  defendant  and  himself  as  president  and 
agent  as  aforesaid;  and  further,  that  the  defendant  and  him- 
self as  president  and  agent  as  aforesaid  are  advised  by  counsel 
to  file  the  said  pleas ;  and  he  further  swears  that  he  is  the  presi- 
dent and  agent  of  the  defendant  corporation  and  is  duly  author- 
ized to  make  this  affidavit,  and  has  personal  knowledge  of  the 
matters  therein  stated. 

Witness  my  hand  and  notarial  seal. 

(Seal) 


Notary  Public. 

CounseVs  certificate 

I  hereby  certify  that  I  advised  the  defendant  corporation 
and  the  president  and  agent  thereof  in  the  above  entitled  cause 
to  file  the  foregoing  pleas  and  to  make  the  foregoing  affidavit. 


Attorney  for  defendant. 

1241  Michigan,  necessity 

In  actions  ui>on  open  accounts,  or  accounts  stated,  the  de- 
fendant must  file  with  his  plea  an  affidavit  made  by  himself  or 
his  agent,  denying  the  amount  claimed  to  be  due ;  and  he  must 
serve  a  copy  thereof  upon  the  plaintiff,  or  his  attorney,  if  the 
plaintiff'  has  filed  with  his  declaration  or  process  an  affidavit 
of  amount  due  and  a  copy  of  the  account  and  has  duly  served 
them  upon  the  defendant. -°^ 

1242  Mississippi 

(Venue) 
Personally  came  before  me   the  undersigned   officer  in  and 

for county  in  the  state  of  Mississippi, , 

the  defendant  in  the  above  styled  cause  who  makes  oath  that 
the  account  sued  on  in  this  cause  is  not  correct  in  that  (Set 
forth  special  matter  constituting  the  errors). 


Sworn,  etc. 

1243  Virginia 

(Venue) 

being  first  duly  sworn,  deposes  and  says  that 

he  is  the  president  of  the defendant  in  the  above 

261  (10191),  C.  L.  1897. 


620  ANNOTATED    l-OKMS    (JF    IM.KADlMi    AND    PHACTICE 

entitled  action,  and  its  duly  authorized  agent  in  this  behalf, 
and  that  he  is  familiar  with  all  the  transactions  between  the 
plaintiff  and  defendant  in  said  action,  and  that  he  verily  believes 
that  the  plaintiff  is  not  entitled  to  recover  anything  from  the 
defendant  on  the  claim  asserted  in  said  action. 


Subscribed,  etc. 

1244  West  Virginia 

(Venue) 

,   being  first  duly  sworn,  says,  that  he  is  the 

defendant  in  the  above  styled  action  and  that  there  is  not,  as 
he  verily  believes,  any  sum  due  from  him  to  the  said  plaintiff 
upon  the  demand  or  demands  stated  in  the  said  i)!aintilf's 
declaration. 


Taken,  subscribed  and  sworn  to,  ete. 

BILL  OF  PARTICULARS 

1245  District  of  Columbia 

Dr. 

To  

To  (Give  itenii/ed  statement  of  account  or  demand), 

1246  Illinois 


To  Dr. 

To  money  paid  to  satisfy  judgment  for  damages  in  the  case 

of    ' V 

Interest  on  money  paid  to  satisfy  said  judgment 

after,  etc.  

Total  


Plaintiff's  attorney. 

1247  Maryland,  demand 

The  defendants  by   their  attorney  demand  the 

particulars  of  the  plaintiff's  claim. 

1248  Maryland,  cross-motion 

The  plaintiff  by   his  attorney,  moves  that  the 

defendant's  demand  for  a  bill  of  particulars  be  not  received, 
because  the  declaration  in  this  case  is  based  on  an  agreement 
under  seal  which  is  embodied  in  the  same,  and  for  other  reasons 
to  be  made  known  at  the  hearing. 


ASSUMPSIT 


621 


1249  Michigan,  demand 

Now  comes  the  above  named  defendant  by  ,  its 

attorney,   and  demands  a   more  specific  bill  of  particulars  ot 
plaintiffs'  claim  for  the  recovery  of  which  suit  is  brought. 

Attorney  for  defendant. 

Dated,  etc. 
To    » 

Attorneys  for  plaintiffs. 

1250  Michigan,  notice  and  particulars 

To  the  above  named  defendant : 

Take  notice,  that  a  bill  of  particulars  of  the  demands  of  the 
plaintiff  under  the  money  counts  is  given  below. 

Plaintift"s  attorney. 

To Dr ,  19. . . 

To  money  paid  under  protest  upon  a  pretended  tax,  to  release 
property  of  said  company  from  a  levy  made  for  the  collection 
of  said  tax  $ 

Interest  thereon  from 

1251  Mississippi,  application 

(Venue) 

Personally   appeared   before   me   the   undersigned   authority 
who  makes  affidavit   in  the  above  styled  cause 
that  for  the  purpose  of  defense  and  the  trial  of  said  cause,  it 
is  necessary  that  the  plaintiff  be  more  specific  in  his  bill  of  par- 
ticulars and  items  going  to  make  up  the  damage  of 

dollars  for  which  plaintiff  is  suing.  He,  therefore,  prays  that 
the  court  mav  require  plaintiff  to  file  a  more  complete  bill  of 
particulars  specifying  the  items,  facts  and  circumstances  relied 
upon  to  show  that  defendant  failed  or  refused  to  carry  out  and 
complete  his  contract,  specifying  time  and  places  where  the 
repeated  demands  alleged  to  have  been  made  on  defendant  were 
made;  that  the  plaintiff  file  a  more  complete  bill  of  particulars 

for  what  work  plaintiff  had  to  pay  the   dollars 

alleged  to  have  been  paid   for  completing  the  work  on  said 
building ;  a  more  complete  bill  as  to  the  labor 

for  which  said   dollars,  or  any  part  thereof  was 

paid ;  and  a  more  complete  bill  of  materials  for  which  the 


622  ANNOTATED    FORMS   OF   PLEADING    AND    PRACTICE 

dollars,  or  any  part  thereof  was  paid.     (Set  forth  as 

many  other  points  upon  which  information  is  desired  as  the 
case  is  susceptible). 


Defendant. 


Sworn,  etc. 


1252  Mississippi,  particulars  and  affidavit 

(Set  forth  account  in  the  usual  form  which  verify  as  follows) : 
(Venue) 

Personally  appeared  before  me  the  undersigned,  a  notary  pub- 
lic of  said  city,  county  and  state agent  for 

,  who  being  duly  sworn,   says  that  the  account   hereto 

attached  for dollars  is  a  true  statement  of  the 

amount  paid  out  by  this  affiant,  as  agent  for   

on  the  contract  of   and  that  the  same  is  correct 

as  stated,  and  that  the  said  sum  is  due  from  the  party  against 
whom  it  is  charged,  and  that  no  part  of  it  has  been  paid. 


Sworn,  etc. 

1253  Mississippi,  counter-affidavit 

(Venue) 

Personally   appeared   before   me   the   undersigned   authority, 

who  makes  affidavit  that  he  is  in  no  way  indebted 

to for  any  of  the  sums  set  out  in  his  bill  of  par- 
ticulars in  the  above  styled  cause ;  that  he  does  not  owe  the 
amount  therein  set  out,  to  wit    (enumerate  items  not  owing.) 

Affiant  further  says  that  he  is  not  indebted  to  the  said 

in  any  sum  whatever,  that  the  above  set  out  account  is 

in  every  particular  incorrect,  and  that  he  does  not  owe  any  or 
either  of  the  items  therein  mentioned. 

Sworn,  etc.  

VERDICT 

1254  Florida 

We,  the  jury,  find  for  the  plaintiff  and  assess  his  damages 

at dollars  with interest  from 

till  date,  and  in  addition  thereto  the  sum  of 

dollars  as  a  reasonable  attorney's  fee. 

So  say  we  all. 

Foreman. 


ASSUMPSIT  623 

1255  niinois,  requisites 

In  assumpsit  it  is  not  necessary  that  a  verdict  should  be  in 
writing,  but  the  same  may  be  announced  by  word  of  mouth 
in  open  court,  by  the  foreman  of  the  jury .262 

1256  Michigan,  variance 

Under  Rule  27  (c)  the  jury  may  disregard  a  misjoinder  of 
defendants  where  the  proof  shows  that  the  contract  alleged 
to  have  been  made  jointly  by  all  of  the  defendants  was,  in  fact, 
made  by  less  than  all;  and  they  may  render  a  verdict  against 
those  who  made  the  contract,  or  those  who  remain  liable  upon 
it,  the  variance  between  the  proofs  and  the  declaration  being 
considered  as  an  unessential  technicality. -'^^ 

1257  Mississippi 

We,  the  jury,  find  for  the  plaintiff  in  the  amount  of 

dollars. 

b 

We,  the  jury,  find  for  the  defendant. 

1258  Virginia 

We,  the  jury,  on  the  issue  joined,  find  for  the  plaintiff,  and 

assess  the  damages  at  dollars  and   

cents  ($ )  with  interest  from 


We,  the  jury,  find  for  the  plaintiff  and  assecs  its  damages 

at dollars  with  interest  thereon  from  the 

until  paid,  subject  to  credits  as  follows;  credit  by 

dollars  as  of    and    dollars 


as  of 


Foreman. 


We,  the  jury,  ascertain  the  amount  due  the  plaintiff  to  be 

dollars  to   be  deducted  from    

dollars  the  amount  we  find  due  the  defendant,  and  after  deduct- 
ing the  sum  allowed  plaintiff  from  the  amount  ascertained  for 
the  defendant,  we  find  a  verdict  for  the  defendant  for  the  bal- 
ance of   dollars. 


Foreman. 

262  Elinois,   la.   &   Minn.   Ey.  Co.       ton  Salt  Assn.,  140  Mich.  441,  444 
V.  Powers,  213  111.  67,  68  (1904).  (1906). 

263  Root   &   McBride  Co.  v.   Wal- 


624  ANNOTATED   FORMS   OF    PLEADING   AND    PRACTICE 

1259  West  Virginia 

We,  the  jury,  find  for  the  plaintiff  and  assess  its  damages 
at dollars. 

JUDGMENT 

1260  Generally;  amount,  interest 

A  judgment  in  assumpsit  should  be  for  a  certain  amount  as 
damages,  and  not  for  debt  and  damages.-'^^  The  recovery  of  in- 
terest depends  entirely  upon  statute.  At  common  law,  no  in- 
terest was  recovered  in  any  case.^"^  Under  Illinois  statute,  inter- 
est at  a  rate  exceeding  live  per  cent  per  annum  can  be  recovered 
only  by  virtue  of  a  contract.^o'^  Interest  is  not  chargeable  upon 
an  open  account  when  some  of  the  items  in  it  are  disputed.^"'^ 

1261  Motion  for  judgment  (District  of  Columbia) 

Comes  now  the  plaintiff by  his  attorney  and 

moves  the  court  for  a  judgment  against  defendant  for  want  of 
a  sufficient  affidavit  of  defense. 


Attorney  for  plaintiff. 

1262  Judgment  (Mississippi) 

(For  commencement  and  conclusion  see  Chapter  XCV)  It 
is  therefore  hereby  considered  by  the  court  that  the  plaintiff 
take  nothing  and  that  he  pay  all  costs  in  this  behalf  expended 
to  be  taxed,  and  the  defendant  do  have  and  recover  of  and  from 
said  plaintiff  all  such  cost  so  expended  in  this  cause,  for  which 
let  execution  issue. 

(Virginia) 

Therefore  it  is  considered  that  the  plaintiff  recover  against 

the  defendant dollars,  with  interest  thereon  after 

the  rate  of per  centum  per  annum  from  the 

day  of ,  19-  •,  until  paid,  and  h.  .  costs  by  .  .h.  . 

about  .  .h. .  suit  in  this  behalf  expended.    And  the  said  defend- 
ant in  mercy,  etc. 

264  Lyon  V.  Barney,  1  Seam.  387  zee  Schwitters  v.  Springer,  236 
(1837).  111.  271,   275    (1908). 

265  Illinois  Central  E.  Co.  v.  267  Flake  v.  Carson,  33  111.  518, 
Cobb,  Blaisdell  &  Co.,  72  111.  148,  526  (1864);  Sec.  2,  c.  74,  Kurd's 
152,  163   (1874).  Stat.   1909,  p.   1358. 


CHAPTER   XXII 
CASE 


IN  GENERAL 

§§ 

12G3  Case  and  trespass,  distinction, 

joinder 

12G4  Remedial  statute 

DECLARATION    REQUISITES 

1265  Time,  videlieit 
12G0  Duty,  coutractual 
12G7  Damages,   time 

1268  Special  damages,  proof 

SPECIAL   CAUSES    OF   ACTION 
AND  DECLARATIONS 

1269  Alienating     husband's     affec- 

tions. Nam 

1270  Alienating    wife's    affections, 

Narr. 

1271  Bridge  unrepaired,  Narr. 

1272  Cable  slot,  defective  construc- 

tion, Narr. 

1273  Cattle,,    diseased    running    at 

large,  action 

1274  Cattle-guards,  action 

1275  Cattle-guards,  Narr. 

1276  Cattle  killed,  declarations,  re- 

quisites 

1277  Cattle  killed,  Narr. 

1278  Change  of  grade,  action 

1279  Change  of  grade,  Narr. 

1280  Collateral  note,  wrongful  sur- 

render, Narr. 

1281  Condemnation,    abandonment, 

action 

1282  Condemnation,    abandonment, 

Narr. 

1283  Collision  with  wagon,  Narr. 

1284  Conspiracy    conc-erning    local 

improvement,  action 


1285 
1286 

1287 

1288 

1289 
1290 
1291 
1292 
1293 
1294 

1295 
1296 
1297 
1298 

1299 

1300 
1301 
1302 
1303 

1304 
1305 
1306 
1307 


Conspiracy    concerning    local 
improvement,  Narr. 
Conspiracy     in    restraint    of 
trade,  action 
Conspiracy    in     restraint    of 
trade,  Narr. 
Conspiracy  to  alienate  wife's 
affections,  Narr. 
Dishonoring  check,  Narr. 
Drainage  inadequate,  action 
Drainage    inadequate,    Narr. 
Drainage  unsanitary,  Narr. 
Excessive  lev}',  Narr. 
Explosion    of   powder    maga- 
zine, Narr. 
False  return,  Narr. 
Fencing  railroad  near  depots 
Fraud  and  deceit,  action 
Fraud  and  deceit ;  declaration 
requisites 

Fraud   and   deceit;    collusion 
between  defendant  and  real 
estate  agent,  Narr. 
Fraud     and     deceit;     incum- 
brance, nonresident,  Narr. 
Fraud   and   deceit;    infringe- 
ment of  patent,  Narr. 
Fraud  and  deceit;  insurance 
policy,  surrender,  Narr. 
Fraud  and  deceit;  notes  se- 
cured  by  bogus   trust  deed 
on  leasehold,  Narr. 
Fraud  and  deceit;  oil  stock, 

Narr. 
Fraud  and  deceit;  shares  of 
capital  stock,  Narr. 
Fraud  and  deceit ;  unrecorded 
trust  deed,  Narr. 
Highways   and    bridges;    ac- 
tion, parties 


625 


626 


ANNOTATED   FORMS   OF   PLEADING   AND    PRACTICE 


1308  Hotel  and  Inn-keepers,  stolen 

property,  action 

1309  Inadequate  fire  protection,  ac- 

tion 

1310  Infectious  premises,  Narr. 

1311  Interference  with  public  sale, 

declaration  requisites 

INTOXICATION 

1312  Nature   and   scope  of   action, 

parties 

1313  Principal  and  surety,  action 

1314  Joinder  of  causes 

1315  Declaration    requisites,    joint 

liability 

1316  Brother's   intoxication,   Narr. 

1317  Husband's  Intoxication,  Narr. 

1318  Parent's   intoxication,    Narr. 

1319  Son's  Intoxication,  Narr. 

LIBEL 

1320  Malice,  proof 

1321  Joinder  of  counts 

1322  Declaration    requisites 

1323  Campaign  contribution  sought 

by  official,  Narr. 

1324  Financial  responsibility,  Narr. 

1325  Hatred,  contempt  and  ridicule, 

action 
132G  Hatred,  contempt  and  ridicule, 
Narr. 

1327  Minister's  conduct,  Narr. 

1328  Pleadings,  libelous  matter,  ac- 

tion 

1329  Pleadings,     libelous     matter, 

Narr. 

1330  Privileged        communications 

proof 

MALICIOUS    PEOSECUTION 

1331  Nature  and  scope 

1332  Declaration   requisites   gener- 

ally 

1333  Abuse  of  process,  action 

1334  Abuse  of  process,  declaration 

requisites 

1335  Attachment,  action 

1336  Attachment,  Narr. 


§§ 

1337  False  Imprisonment,  action 

1338  False  imprisonment,  Narr. 

1339  Injunction,  action 

1340  Replevin,  Narr. 


1341  Malpractice      as      physician, 

Narr. 

1342  Nuisance      private;       action, 

notice,  damages 

1343  Nuisance,  i)ubllc;  action 

1344  Nuisance,    declaration    requi- 

sites 

1345  Obstructing     navigation, 

bridge ;  action 

1346  Obstructing      navigation, 

bridge ;     declaration     requi- 
sites 

1347  Obstructing  public  street,  rail- 

road ;  action 

1348  Obstructing  public  street,  rail- 

road ;   declaration   requisites 

1349  Overflow  of  lauds,  dam  across 

slough,  Narr. 

1350  Overflow   of   lands,   ditch  im- 

properly constructed,  Narr. 
1:551  Overflow    of    lands,    drainage 
channel,  action 

1352  Overflow   of   lands,   drainage 

channel,  Narr. 

1353  Overflow    of    lands,    embank- 

ment ;  action 

1354  Overflow    of    lands,    embank- 

ment, Narr. 

1355  Overflow  of  lands,  levee  con- 

struction ;  action 

1356  Overflow  of  lands,  levee  con- 

struction, Narr. 

1357  Overflow  of  lands,  notice,  req- 

uisites 

1358  Overflow  of  lands,  sewer  in- 

suflicient,  Narr. 

1359  Public  improvement,  action 

1360  Reple\iu     bond,     insufficient, 

action 

1361  Reversion,  action 

1362  School    schedule,    refusal    to 

certify,  declaration  requisites 

1363  Seduction,  action 

1364  Seduction,  parties 


CASE 


627 


§§ 

1365  Seduction,  joinder  of  counts 
13GG  Seduction,     declaration     req- 
uisites 

SLANDEE 

1367  Action,  nature  and  scope 

1368  Parties 

1369  Declaration   requisites,   proof 

1370  Larceny,  Narr. 

1371  Perjury,  Narr. 

1372  Woman's  character,  Narr. 


1373  Sparks  from  locomotive,  Narr. 

1374  Sparks  from  traction  engine, 

Narr. 

1375  Strikes,  action 

1376  Strikes.  Narr. 

1377  Telegrams,     negligent     trans- 

mission,  action 

1378  Telegrams,     negligent    trans- 

mission, Narr. 

TEANSPORTATION 

1379  Bill  of  lading,  limitation 

1380  Jurisdiction 

1381  Cattle,  feeding  and  watering, 

action 

1382  Cattle,  injured  and  lost,  Narr. 

1383  Goods  damaged,   Narr. 

1384  Goods. lost  in  transit,  Narr. 


1385  Vicious  animals,  action 

1386  Vicious   animals,    declaration 

requisites 

1387  Vicious  animals,  Narr. 

1388  Water  supply  cut  off,  Narr. 

1389  Wrongful    discharge    effected 

by    employer's    liability    in- 
surer, Narr. 

SPECIAL  DEFENSES  AND 
PLEAS 

1390  Accord       and       satisfaction, 

pleading 

1391  Accord  and  satisfaction,  plea 

1392  Arrest  without  warrant,  pub- 

lic officer 


§§ 

1393  Conspiracy       between       con- 

tractor     and      improvement 
board 

1394  Foreign   laws   and   decisions, 

pleading 

1395  Fraud    and    deceit ;    inquiry, 

failure  to  make 

1396  Fraud  and  deceit;  statute  of 

frauds,  general  issue 

1397  Intoxication,  death  unforeseen 

1398  Intoxication,  life  insurance 

1399  Intoxication ;    regulation   and 

prohibition,  scope 

LIBEL 

1400  Demurrer 

1401  Denial  of  justification,  proof 

1402  General  issue,  scope 

1403  Justification;   plea,   requisites 

1404  Justification ;     notice,     requi- 

sites 

MALICIOUS    PEOSECUTION 


1405  Attachment,  waiver 

1406  False  imprisonment. 

res  judi- 

cata 

1407  Justification;     res 

judicata, 

plea,  requisites 

1408  Justification,     res 

judicata, 

plea 

1409  Probable  cause,  law 

and  fact 

1410  Probable      cause, 

pleading, 

proof 

1411  Ordinance,  pleading 

1412  Ownership    of    property,    de- 

nial ;  plea 

1413  Release,  pleading 

1414  Seduction,  chastity 

SLANDER 

1415  Generally 

1416  General  issue,  proof 

1417  Justification;  plea  or  notice. 

nature 


628  ANNOTATED   FOliMti  OF  PLEADING   AND  PRACTICE 


1418  Justification ;  burden  of  proof,  VERDICT 

practice 

1-119  Justification;  plea,  retiuisites     ^";-'*  ,V,^'*^\''^ 

-  4../^  T     i-i:     i-  *•  ,ii       11-0  Illinois,  dranj-sliop 

1420  Justification;      notice,      sulh-     ^ ,_,_  ,,,^     _  '  _  , 

ciency 


1127  Illinois,  {general 
112S  ^Mississippi 


1421  Statute  of  limitations,  plead-     ^^'^^  Virginia 


ing 
1422  Statute    of    limitations,    plea 
and  replication 


1430  West  Virginia 

JUDGMENT 


1431  Requisites 
GENERAL  ISSUE  ^^..,  p^,^ 

1423  Nature  and  effect  1433  Appeal 

1424  Forms 

IN  GENERAL 

1263  Case  and  trespass,  distinction,  joinder 

The  distinction  between  trespass  and  case  clearly  appears 
where  there  is  a  disturbance  of  the  possession  and  damage  to 
real  estate  that  is  held  by  two  distinct  ownerships,  that  of  the 
owner  and  that  of  the  lessee,  the  latter  occupying  the  premises. 
In  the  event  of  damage,  the  lessee  alone  has  a  right  to  an  action 
of  trespass,  while  the  owner  has  a  right  of  action  on  the  case 
for  the  damage  to  his  reversion.^  Case,  and  not  trespass,  is 
maintainable  for  an  injury  produced  by  a  cause  that  is  known 
to  the  wrongdoer  to  be  of  a  dangerous  nature  or  character.'- 

At  common  law  different  causes  of  action  cannot  be  joined  in 
one  declaration  or  suit.  Therefore,  counts  in  case  could  not  be 
joined  with  counts  in  trespass.  By  Illinois  statute,  the  technic;d 
distinction  between  the  forms  of  actions  of  trespass  and  actions 
on  the  case  has  been  abolished,  and  the  joinder  of  counts  in  the 
two  forms  of  action  is  permissible.  But  the  statute  does  not 
affect  the  substantial  rights  or  liabilities  of  the  parties,  and  the 
averments  and  the  proofs  necessary  to  sustain  either  cause  of 
action  are  the  same  as  at  common  law.3 

1264  Remedial  statutes 

A  party  who  has  sustained  damages  by  a  breach  of  a  remedial 
statute  may  bring  an  action  on  the  case  for  their  recovery,  unless 
the  statute  requires  the  bringing  of  a  different  form  of  action.'* 

1  Halligau  v.  Chicago,  Rock  Island  3  Chicago  Title  &  Trust  Co.  v. 
Ry.  Co.,  15  111.  558,  560  (1854).  Core,  223  El,  58,  63  (1906). 

2  Stumps  V.  Kelley,  22  111.  140,  *  Mount  v.  Hunter,  58  111.  246,  248 
143    (1859).  (1871). 


CASE  629 

DECLARATION  REQUISITES 

1265  Time,  videlicit 

A  plaintiff  is  not  confined  to  the  exact  time  that  is  alleged  in 
his  declaration,  if  the  time  is  stated  under  a  videlicit.  The  of- 
fense charged  may  be  shown  to  have  been  committed  upon  any 
day  within  the  period  of  the  statute  of  limitations.^ 

1266  Duty,  contractual 

In  an  action  on  the  case  for  a  violation  of  a  contractual  duty 
it  is  sufficient  to  state  in  substance  only  so  much  of  the  contract 
as  has  been  broken.^ 

1267  Damag-es,  time 

In  an  action  on  the  case  it  is  not  necessary  that  the  declara- 
tion should  state  the  time  or  times  when  the  damages  were  sus- 
tained, as  the  legal  effect  of  the  allegation  of  damages  is  that 
they  were  sustained  when  the  wrongful  act  of  the  defendant 
was  committed  and  on  divers  other  days  between  that  time  and 
the  commencement  of  the  suit  J 

1268  Special  damages,  proof 

An  averment  of  special  damages  must  be  specific  and  not  gen- 
eral.*^ The  allegation  of  special  damages  is  a  matter  of  aggrava- 
tion- as  a  substantive  allegation  of  fact,  and  not  an  inference  of 
law  resulting  from  facts  antecedently  stated.'-*  Without  proof 
of  actual  damages,  a  plaintiff  cannot,  at  common  law,  recover 
substantial  damages.^** 

SPECIAL  CAUSES  OF  ACTION  AND  DECLARATIONS 

1269  Alienating  husband's  affections,  Narr.  (111.) 

^^  For  that  whereas,  the  defendant,  contriving  and  Adckedly 
intending  to  injure  the  plaintiff  and  to  deprive  her  of  the  so- 
ciety and  assistance  of ,  the  husband  of  the  plain- 
tiff, on,  to  wit,  the day  of ,  19 .  . , 

5  Johnston  v.  Disbrow,  47  Mich.  s  Grand  Eapids  &  Indiana  R.  Co. 
59,  61  (1881);  Toledo,  Peoria  &  v.  Soiithwick,  30  Mich.  444,  447 
Warsaw   Ry.   Co.   v.   MeClannon,   41        (1874). 

111.  238,  240,  241  (1866).  9  McConnel  v.  Kibbe,  supra. 

6  American  Express  Co.  v.  Pinck-  lo  Raiser  v.  Chicago  &  Alton  Ry. 
nev.  29  111.  392,  407   (1862).  Co.,  215  111.  47,  57   (1905). 

7  McConnel  v.  Kibbe,  33  111.  175,  n  See  Section  211,  Note  60. 
179  (1864). 


630  ANNOTATED   FORMS  OF   PLEADING    AND   PRACTICE 

and  on  divers  other  days  between  that  time  and  the  coramence- 

ment  of  this  suit,  in  the  county  of ,  and  state  of 

Illinois,  did  wilfully  and  maliciously  destroy  and  alienate  from 

the  plaintiff  the  affection  then  and  there  had  by  the  said 

,  then  and  there  the  husband  of  the  said   , 

for  the  said   ,  the  said    in  no  wise 

consenting  thereto:  by  means  whereof  the  plaintiff  has  from 
thence  hitherto  wholly  lost  and  been  deprived  of  the  society, 

affection,  assistance  and  comfort  of  the  said  ,  her 

said  husband,  in  her  domestic  affairs,  which  the  plaintiff  during 
all  of  said  time  ought  to  have  had.     To  the  damage,  etc. 

By  criminal  means 

For  that  whereas,  the  defendant,  contriving  and  wickedly 
intending  to  injure  the  plaintiff  and  to  deprive  her  of  the  so- 
ciety and  assistance  of ,  the  husband  of  the  plain- 
tiff, and  to  alienate  and  destroy  his  affection  for  the  phiintiff, 

on,  to  wit,  the day  of ,!!>...  and 

on  divers  other  days  between  that  day  and  the  commencement 

of  this  suit  in   county,   Illinois,  and  in  the  city 

of    ,   Illinois,   defendant  wrongfuly   and   wickedly 

debauched  and  carnally  knew  the  said ,  then  and 

there  and  still  being  the  husband  of  the  plaintiff,  and  thereby 

the  affection  of  the  said for  the  plaintiff"  was  then 

and  there  alienated  and  destroyed;  and  also,  by  means  of  the 
premises,  the  plaintiff  has  from  thence  hitherto  wliolly  lost 
and  been  deprived  of  the  society  and  assistance  of  the  said 

,  her  said  husband  in  her  domestic  affairs,  which 

the  plaintiff  during  all  that  time  ought  to  have  had,  and  might 
otherwise  and  would  have  had:    To  the  damage,  etc. 

1270  Alienating  wife's  affections,  Narr.  (Mich.) 

For  that  whereas,  the  said  plaintiff  was  in  the  year   

. .  married  to  one   and  as  the  result  of  said 

marriage  there  was  born  to  said  parties   children,  to 

wit : ,  aged years,  and aged 

years,  both  of  whom  are  now  living. 

That  this  plaintiff  and  the  said    always  lived 

in  happiness,  peace  and  comfort  together  until  on  or  about 
the day  of ,  19 . , ,  when  the  said  de- 
fendant wrongfully  and  wickedly  intending  to  injure  the  plain- 
tiff and  to  deprive  him  of  the  affection,  comfort,   fellowship, 

society  and  association  of  the  said and  their  said 

children  and  of  the  aid  and  assistance  of  the  said , 

and  to  alienate  and  destroy  the  affections  of  her  the  said 

for  the  plaintiff,  heretofore,  to  wit,  on  the  day  and  year 

last  aforesaid,  and  on  divers  other  days  and  times  and  times 
between  that  day  and  the  time  of  the  commencement  of  this 


CASE  631 

action,  at,  to  wit,   in  said   county 

and  in  various  other  places,  carried  on  a  secret  correspondence 

with  the  said and  cajoled  and  flattered  her,  the 

said  and  made  her  many  promises  of  love  and 

held  various  clandestine  meetings  with  her  and  gave  her  various 
presents  and  things  of  value,  and  by  various  arts  and  schemes 
and  devices,  he,  the  said  defendant,i2  (alienated  and  destroyed 

the  affections  of  her,  the  said   ,  for  this  plaintiff 

and  induced  her  to  leave  this  plaintiff  and  to  take  with  her  the 
said  children  and  refuse  longer  to  give  him  her  affection,  com- 
fort, society,  fellowship,  aid  and  assistance  which  the  said  plain- 
tiff had  possessed  and  enjoyed  before  the  committing  ot  said 
wrongful  acts  by  the  said  defendant).  ,  ..,      ^     i. 

By  means  whereof  the  plaintiff  from  thence  hitherto  has 
whollv  lost  all  the  affection,  comfort,  fellowship,  society  aid 
and  assistance  of  the  said  wife  and  the  comfort,  society  and  tel- 
lowship  of  his  said  children  and  was  and  is  caused  to  suffer 
great  mental  anguish,  distress  and  pain,  and  great  annoyance 
and  suffering  in  his  household  and  was  and  is  wholly  humiliated 
among  his  neighbors  and  acquaintances  and  friends,  and  has 
been  otherwise  damaged. 

1271  Bridge  unrepaired,  Narr.  (Md.) 

For  that  the  plaintiff  had  a  contract  with  the  M  to  construct 
for  it  certain  concrete  piers  in river  or  the  abut- 
ting shores  thereof  in county,  in    he  construction 

of  which  piers  certain  lumber,  sand,  cement  and  other  material 
were  needed  and  which  material  the  plaintiff  was  obliged  under 
said  contract  to  provide  and  convey  to  the  place  where  said 
piers  were  to  be  constructed  as  aforesaid.     That  said  contract 

was  in  writing  and  dated  the .  day  of •  • , 

19        and  that  bv  the  terms  thereof  plaintiff  was  required  to 

commence  work  on  said  piers  within •  • . .   days  from 

said  date,  and  was  required  to  complete  said  piers  according 

to  the  specifications  in  said  contract  set  out  within     . 

working  days  from  the  date  of  said  contract,  and  in  said  con 
tract  was  further  provided  a  penalty  of   ............   aoiiars 

per  day  to  be  paid  by  the  plaintiff  for  every  day  beyond  said 

Period  of  working  days  required  for  the  comple- 

?k)n  of  said  piers  as  aforesaid.     That  preparatory  to  carrying 
out  said  contract  on  his  part,  the  plaintiff  provided  lumber. 

1"  Tn  chttrap  alienation  by  means      the  said   ;••■/'  ^"^'"^"^ 

nflluterv  omit  matter  between  pa-       and  by  means  of  which  arts,  schemes. 
rLtSrLd  insert  instead  thisf  devices,  clandest  ne  meetings    prom- 

intercour^se  with  her,  the  said  .....       and  destroyed. 
and  did  commit  adultery  with  her, 


632  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

cement  and  other  material  and  deposited  the  same  at  or  near 

station  on  said  M  line   of   railroad,   commonly 

known  as  " "  and  provided  also  sand  a  short  dis- 
tance  below    station,   all  of   which   material   the 

plaintiff  w^as  prepared  to  haul  from  said  points  to  the  point 
where  said  piers  were  to  be  constructed,  said  haul  to  be  over 
the  county  public  road  there  situate  leading  from  the  points 
above  described  through  the  property  of  one  K  and  thence  across 

an  arm  of   river  by  a  public  county   bridge  to 

the  lands  of  one  L,  through  whose  lands  tlie  plaintiff 
had  made  arrangements  to  haul  said  material  for  the  pur- 
poses aforesaid.  That  said  public  county  road  through  the 
lands  of  K  and  the  said  public  county  bridge,  which  was  then 
and  there  part  of  the  public  highway  as  aforesaid  over  said  arm 
of river  was  the  only  county  pul)lic  road  afford- 
ing access  from  said station  and  its  neighborhood 

to  the  place  where  said  concrete  piers  were  to  be  constructed 
as  aforesaid  by  the  plaintiff  and  the  plaintiff  had  no  other  access 
by  the  public  highway  for  himself,  his  servants  and  agents,  his 
beasts,  carts  and  wagons  to  transport  the  said  material  from 

station  as  aforesaid  to  the  said  place  where  said 

piers  were  to  be  constructed  as  aforesaid.  And  the  plaintiff 
further  said  that  relying  upon  the  said  county  public  road  and 
bridge  as  the  means  of  access  to  said  place  of  constructing  said 
piers  as  aforesaid,  he  did  enter  into  said  contract  to  construct 
said  piers,  and  did  lay  out  and  expend  large  sums  of  money 
in  the  purchase  of  said  lumber  and  cement  and  other  materials 
and  in  providing  sand  as  aforesaid  and  in  depositing  the  same 

at  or  near station  as  aforesaid  to  be  from  there 

transported  as  aforesaid  by  way  of  said  county  road  and  bridge 
to  the  said  place  of  constructing  said  piers. 

That  said  bridge  over  said  arm  of river  was  suf- 
fered and  permitted  by  the  defendant  to  become  wholly  impass- 
able, although  the  defendant  had  the  custody  and  control  thereof 
and  was  responsible  for  the  proper  maintenance  thereof  for 
public  travel,  and  the  defendant  unmindful  of  its  duty  in  the 
premises,  and  with  notice  of  the  bad  condition  of  said  bridge, 
suffered  and  permitted  the  same  to  become  and  to  remain  out 
of  repair  and  broken  down,  so  that  it  was  impossible  to  pass 
over  said  bridge  wath  carts  and  wagons  and  to  transport  over 
said  bridge  the  aforesaid  material  prepared  for  the  construc- 
tion of  said  piers  as  aforesaid.  That  the  situation  of  the  plain- 
tiff in  the  said  regard  was  peculiar  and  different  from  the  sit- 
uation of  others  in  respect  to  said  road  and  bridge  and  the  use 
thereof,  in  that  the  plaintiff  was  under  contract  to  construct 
said  piers  as  aforesaid,  and  could  not  provide  and  transport 
to  the  place  where  said  piers  were  to  be  constructed  material 
other  than  that  already  provided  as  aforesaid  within  the  time 
required  by  said  contract  and  for  many  days  thereafter,  and 
could  not  transport  by  any  public  highway  the  material  already 


CASE  633 

provided  for  said  purpose  to  the  said  place  of  construction,  and 
was  by  reason  thereof  required  to  lay  out  and  expend  large 
sums  of  money  in  and  about  the  transportation  of  said  material 
to  the  place  of  constructing  said  piers  greatly  in  excess  of  the 
cost  of  hauling  the  same  over  said  public  road  and  bridge  as 
the  plaintiff  was  entitled  and  expected  to  do  when  he  entered 
into  said  contract. 

And  the  plaintiff  saith  that  he  hath  not  sustained  a  loss  in 
common  with  the  other  citizens  of  the  county  there  inhabiting 
and  residing,  but  that  he  hath  sustained  and  suffered  a  distinct 
and  peculiar  loss  by  reason  of  the  action  of  the  defendant  in 
the  premises  as  herein  before  set  out. 

Wherefore  the  plaintiff  brings  this  suit  and  claims   

dollars  damages. 

1272  Cable  slot,  defective  construction,  Narr.  (Md.) 

And  for  that  the  defendant  corporation  maintains  and  oper- 
ates for  its  own  uses  and  purposes  a  line  of  street  railways  in, 

along  and  upon  the  streets  of  the  city  of   over 

which  it  operates  and  propells  cars  by  electricity  and  other 
force  and  power,  that  among  the  streets  so  occupied  and  used 
by  the  defendant  at  the  time  of  the  happenings  and  wrongs 

and   grievances   hereinafter   complained   of   was    

street  then  and  there  a  public  highway  between   

street  and street  likewise  public  highways  of  said 

city.  That  in  the  construction  of  its  tracks  and  appliances  for 
the  propulsion  of  its  cars,  it  constructed  what  is  known  as  a 
cable  slot  in  the  bed  of  said  street,  which  con- 
sisted of  a  slot  three-fourths  of  an  inch  wide  on  the  straight 
track  and  seven-eighths  of  an  inch  wide  around  the  curves  of 
said  track,  which  slot  opened  into  an  underground  conduit  or 
ditch  about  twelve  feet  in  circumference,  in  which  a  moving 
cable  was  operated  to  propell  its  cars,  and  that  when  kept  in 
the  condition  as  originally  planned  and  in  accordance  with 
the  plans  and  specifications  filed  in  the  city  commissioner's 
office,  there  was  no  damage  to  the  traveling  public  who  used 
said  highways  with  their  teams  drawn  by  horses,  but  when 
allowed  to  become  out  of  repair  and  wider  than  originally  con- 
templated, the  same  became  a  nuisance  to  the  traveling  pub- 
lic and  dangerous  to  life  and  property ;  and  that  the  defendant 
in  total  disregard  of  its  duty  to  the  traveling  public,  allowed 
said  cable  slot,  situated  as  aforesaid  in  the  center  of  each  of 
its  east  and  westbound  tracks  to  become  more  than  three- 
fourths  of  an  inch  wide  and  so  wide  that  the  wheels  of  an  ordi- 
nary vehicle  which  is  usually  used  for  the  conveyance  of  pas- 
sengers and  drawn  by  a  horse  or  horses  could  drop  into  the 

said  slot ;  and  that  on  or  about ,  19 .  . ,  the  plaintiff, 

while  exercising  due  care  and  driving  in  his  buggy,  drawn  by 
his  horse,  on  said   street,  between   


634  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

and   streets,  by  reason  of  the  negligence  of  the 

defendant  in  allowing  said  slot  to  become  a  pul)li('  nuisance  and 
to  become  out  of  repair  and  not  as  originally  shown  hy  llu'  plans 
and  specifications  tiled  with  the  city  commissioner,  the  wheels 
of  his  buggy  dropped  into  said  slot  and  became  caught,  wliereby 
said  buggy  was  demolished,  the  horse  thrown  and  injured  se- 
verely and  permanently,  and  re(iuired  the  ser\'ices  of  a  veteri- 
nary surgeon  and  medicines  and  attention,  and  the  harness  was 
broken  and  torn  to  pieces  requiring  repairs;  for  all  of  which 
the  plaintiff  has  been  put  to  great  costs  and  expense,  and  the 
plaintiff  is  otherwise  injured  and  damaged  ;  anti  the  plaintiff 
says  that  all  of  said  injuries  to  his  horse,  harness  and  l)uggy 
were  directly  caused  by  the  negligence  and  want  of  care  of 
the  defendants,  its  agents  and  servants  in  the  premises  and 
without  negligence  and  want  of  care  of  the  plaintiff  directly 
thereunto  contributing.  Wherefore  this  suit  is  brought.  And 
the  plaintiff  claims  $ as  his  damages. 

1273  Cattle,  diseased  running  at  large,  action 

An  action  on  the  case  is  maintainable  for  causing  a  person's 
cattle  to  become  infected  by  permitting  diseased  sheep,  or  do- 
mestic animals,  to  run  at  large. ^^ 

1274  Cattle-guards,  action 

It  is  the  duty  of  a  railroad  company,  under  the  Illinois  Rail- 
road Fencing  act,  to  enclose  the  fenced  portion  of  its  right  of 
way  by  suitable  and  sufficient  wing  fences  and  cattle-guards 
whenever  it  is  the  duty  to  fence  ends,  regardless  of  whether 
another  railroad  company  owes  a  similar  duty  and  neglects  to 
perform  it.  For  a  failure  to  perform  this  duty  a  railroad  com- 
pany is  liable  for  damages  resulting  therefrom.^* 

1275  Cattle-guards,  Narr.  (Miss.) 

The  plaintiff  is  a  railroad  company,  incorporated  under  the 
laws  of  ]\Iississippi  and  engaged  in  the  business  of  operating  a 
railroad,  and  has  now  and  had  at  the  times  hereinafter  set  out 
a  railroad  running  from  to  ,  Mis- 
sissippi ;  that  said  railroad  enters  enclosed  land  near    

,  Mississippi  in  which   inclosure  plaintiff  has  land,  the 

point  at  which  said  railroad  enters  said  enclosed  land  being  at 

the  first  cattle  gap  south  of  said  station  of ;  that 

it  was  the  duty  of  the  defendant  where  its  line  of  railroad  so 

13  Mount  V.  Hunter,  58  111.  247;  i*  Illinois  Central  R.  Co.  v.  David- 

Sec.  258,  c.  38,  Kurd's  Stat.  1909,  p.       son,  225  111.  618,  624  (1907). 
803. 


CASE  635 

entered  the  said  enclosed  land  to  construct  and  maintain  a 
necessary  and  proper  stock  gap   cattle-guard;  that  defendant 

in  the  years   wholly  disregarded  its  duty  in  the 

premises  and  refused  to  erect  and  maintain  such  cattle-guard 
and  stock  gap,  the  one  hereinbefore  mentioned  being  improper 
an  entirely  insufficient  to  keep  cattle  and  other  stock  out  of  said 
enclosed  land. 

Plaintiff  alleges  that  during  the  years ,  plaintiff 

was  damaged  by  cattle  and  stock  coming  into  said  enclosed 
land  over  said  defective  cattle  gap  and  eating  and  destroying 
his  crops  of  cotton,  corn  and  peas,  said  damages  appearing 
fully  by  a  bill  of  particulars  filed  herewith  as  a  part  hereof  as 
exhibit  "A"  hereto  attached,  showing  damages  in  the  sum  of 
dollars. 

1276  Cattle  killed,  declaration,  requisites 

In  an  action  on  the  case  against  the  railroad  company  for  kill- 
ing plaintiff's  cattle,  the  declaration  need  not  aver  that  the  kill- 
ing was  done  on  defendant's  railroad  track,  because  the  gist  of 
the  action  is  the  mismanaging  of  the  locomotive  engine,  which 
may  be  done  in  any  place.i'^ 

1277  Cattle  killed,  Narr.  (W.  Va.) 

For  that  heretofore  to  wit,  on  the day  of 

,  19. .,  at  the  county  of aforesaid,  the  said 

plaintiff  owned  and  was  possessed  of  a  horse  of  great  value,  to 
wit,  of  the  value  of dollar ;  and  the  said  defend- 
ant was  then  and  there  the  owner,  and  possessed  of  a  certain 

railway  in  the  said  county  of ,  which  it  used  and 

operated  with  its  locomotive  engines  and  cars  under  the  care, 
management  and  direction  of  its  servants  and  agents  in  that 
behalf.  Nevertheless  the  said  defendant,  then  and  there,  by  its 
said  servants  and  agents,  so  improperly  and  negligently  used, 
managed,  ran,  and  operated  its  said  locomotive  engines  and 
cars,  that  by  and  through  the  negligence,  carelessness,  and  im- 
proper conduct  of  the  said  defendant,  by  its  servants  and  agents 
in  that  behalf,  the  locomotive  engine  and  cars  of  the  said  defend- 
ant, then  and  there,  ran  upon  and  over  the  said  horse  of  the 
said  plaintiff,  and  thereby,  and  then  and  there  broke  the  leg 
of  the  said  horse,  and  the  said  horse  of  the  said  plaintiff,  thereby, 
then  and  there  became  and  was  rendered  of  no  use  or  value 
to  the  said  plaintiff,  to  wit,  on  the  day  and  year  aforesaid  at 
the  county  aforesaid,  wherefore,  etc.^® 

15  Baylor  v.  Baltimore  &  Ohio  R.  le  Blaine  v.  Chesapeake  &  Ohio  R. 

Co.,  9  \V.  Va.  270,  280,  281  (1876) ;       Co.,  9  W.  Va.  252,  261  (1876). 
Housatonic  K.  Co.  v.  Waterburj,  23 
Conn.  101,  108   (1854). 


636  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 


For  that  the  said  defendant  heretofore,  to  wit,  on  the 

day  of ,  19. .,  at  tlie  county  aforesaid,  was 

a  corporation,  and  owned  and  operated  a  certain  railroad  called 

the running  from  the  city  of ,  through 

the  county  aforesaid  to  the  city  of   ,  and  on  the 

said    day  of   ,  19 .  . ,  at  the  county 

aforesaid,  the  said  defendant  negligently,  carelessly  and  wrong- 
fully caused  a  train  of  cars  upon  its  said  railroad  and  under 
said  defendant's  control  to  be  propelled  and  driven  with  great 

force  in  and  upon  the  fat  cattle  of  the  plaintilf,  whereby 

of  said  fat  cattle  were  instantly  killed,  and  several  others 

were  greatly  bruised,  wounded  and  injured,  without  the  fault 
or  negligence  of  the  plaintiff,  and  solely  by  the  said  negligence 
and  carelessness  of  the  said  defendant  in  this,  that  the  said 
defendant  seeing  the  plaintiff's  said  fat  cattle  upon  its  said 
railroad,  and  well  knowing  that  the  said  cattle  were  upon  said 
railroad  without  any  fault,  negligence  or  carelessness  of  the 
plaintiff,  the  said  defendant  recklessly,  carelessly,  negligently 
and  wrongfully  propelled  and  drove  its  locomotive  engine  and 
train  of  cars  upon  and  over  said  fat  cattle,  and  did  not  sound 
the  whistle  of  said  locomotive  engine  nor  slack  the  speed  of 
said  train  of  cars,  nor  use  other  precaution  or  means  to  prevent 
the  injury  aforesaid,  but  on  the  contrary,  the  said  defendant 
did  wantonly,  carelessly  and  negligently  commit  the  injury 
and  wrong  aforesaid,  in  manner  aforesaid;  by  reason  wdiereof 
the  plaintiff  says  he  is  greatly  injured  (said  cattle  which  were 

then  and  there  killed  as  aforesaid  being  of  the  value  of 

dollars,  and  the  said   cattle  injured  and 

wounded  as  aforesaid  being  of  the  value  of  dol- 
lars), and  hath  lost  said  cattle,  and  is  damaged  to  the  extent 
of  dollai-s,  and  therefore  brings  this  suit,  etc,^'^ 

1278  Change  of  grade,  action 

A  municipality,  and  anyone  acting  under  its  authority,  is 
liable  in  damages  caused  by  a  change  of  grade  of  a  street  whereby 
access  to  private  property  is  obstructed,  or  the  property  has 
been  substantially  depreciated  in  value.  This  right  of  action 
does  not  necessarily  arise  from  a  wrongful  act  of  the  munici- 
pality; but  it  rests  upon  the  constitutional  provision  that  no 
private  property  shall  be  taken  or  damaged  without  just  com- 
pensation.^^ 

"Hawker  v.  Baltimore  &  Ohio  E.  Staunton,  246  111.  394,  397   (1910); 

Co.,  15  W.  Va.  628  (1879).  Grant  Park  v.  Trah,  218  111.  516,  519 

isShrader    v.    Cleveland,    Cincin-  (1905) ;  See,  13,  art.  2,  Const.  1870 

nati,  Chicago  &  St.  L.  Ey.  Co.,  242  (111.), 
m.   227,   229    (1909);    Chapman   v. 


CASE  637 

1279  Change  of  grade,  Narr.  (111.) 

For  that  whereas  heretofore,  to  wit,  on  the day 

of  19 . . ,  and  for years  prior  thereto,  the 

plaintiff  was,  and  still  is,  the  owner  and  in  possession  of  the 
premises  known  and  described  as  (Insert  legal  description)  in 

the    ,    county  and  state  of  Illinois, 

together  with  the  appurtenances  thereunto  belonging. 

And  plaintiff  avers  that  prior  to  and  at  the  time  of  the  acts 

herein  complained  of,  a  certain  street  in  said ,  to 

wit, street,  extended  along  the  south  side  and  ad- 
joined the  said  premises  thereof  for  a  distance  of,  to  wit, 

feet,  and  another  certain  street,  to  wit,    street, 

in  said   ,  extended  along  the  east  line  adjoining 

said  premises  for  a  distance  of,  to  wit, feet.    That  at  the 

time  last  mentioned  there  were  situate  on  said  premises  certain 

buildings  belonging  to  said  plaintiff,  to  wit : one  large 

story   brick   building,   adjoining  and   fronting  upon 

said    street,   located  west  of  said    

street  a  distance  of,  to  wit, feet ;  one  other  certain 

building,   located   on  said   premises   fronting   and 

adjoining  upon  said   street,  and  located  west  of 

said street,  a  distance  of,  to  Avit, feet 

(Describe  any  other,  if  any,  and  give  building  location).  All  of 
which  said  buildings  then  and  there  had  basements  thereunder 

and  had  been  erected  thereon,  to  wit, years  prior  to  the 

commission  of  the  acts  herein  complained  of,  and  were  at  said 
last  mentioned  time,  and  had  been,  used  for  business  purposes, 
and  during  said  times  all  of  the  said  buildings  then  and  there, 
had  direct  and  convenient  access  to  and  from  said  streets  for 
air,  light,  persons  and  vehicles  to  pass  to  and  from  the  same. 
That  at  the  time  said  buildings  were  erected,  the  grade  of  said 
streets  was  level,  and  said  buildings  were  constructed  with  due 
regard  to  the  grade  then  existing,  that  is  to  say,  the  foundation 
of  each  of  said  buildings  and  the  ground  floor  was  erected  and 
carried  above  the  grade  of  said  streets,  a  distance  of,  to  wit, 
feet. 

That  afterward,  to  wit,  on  the day  of , 

19.,,  while  plaintiff  was  in  possession  and  enjoyment  of  his 
said  premises  as  aforesaid,  said  defendant,  regardless  of  the 
rights  of  said  plaintiff  and  without  the  knowledge  or  consent 
of  plaintiff,  wrongfully  and  negligently,  built  and  constructed 
and  caused  to  be  built  and  constructed,  certain  public  sidewalks 
of  cement  and  other  permanent  walks,  upon  and  along  the  north 

side  of  said street,  adjoining  said  premises  and 

buildings  of  said  plaintiff  fronting  on  said street, 

and  also  along  and  upon  the  west  side  of  said street, 

adjoining  said  premises,  and  the  buildings  fronting  thereon, 
belonging  to  said  plaintiff,  which  said  sidewalks  constructed  as 
aforesaid,  were  then  and  there  of  great  height,  to  wit,  of  the 


638  ANNOTATED   FORMS  OF   PLEADING  AND   PRACTICE 

height  of feet  above  the  original  and  natural  grade  of 

said  streets,  so  that  the  surface  of  said  sidewalks  extended  up 
the  walls  of  said  buildings  and  above  the  public  and  private  en- 
trances thereof  and  above  the  floor  of  the  first  story  of  said 
buildings,  a  distance  of,  to  wit, inches,  by  means  where- 
of a  free  and  convenient  access  of  air,  light  and  travel  to  said 
premises  from  said  streets,  and  the  free  communication  there- 
tofore existing  between  said  premises  and  said  streets  were  then 
and  there  cut  off  and  destroyed ;  that  said  premises  were  there- 
by rendered  unfit  for  the  uses  to  which  they  had  been  and  were 
best  adapted,  and  for  which  they  were  most  valuable;  that 
water  flows  from  said  walks  unto  said  premises  and  into  said 
buildings,  thereby  causing  said  premises  to  become  unwhole- 
some and  unfit  for  habitation,  and  the  basements  under  said 
buildings  and  foundation  walls  thereunder,  became  and  are  de- 
stroyed ;  that  the  construction  of  said  walks  as  aforesaid,  water 
will  continue  to  flow  from  said  walks  unto  said  premises  as 
aforesaid ;  that  it  became  and  is  dangerous  to  pass  to  and  from 
said  buildings  by  the  usual  modes  of  ingress  and  egress  there- 
from ;  that  the  reasonable  use  and  enjoyment  of  said  property 
has  been  destroyed,  and  the  market  value  of  said  property  has 

been  depreciated  in  the  sum  of dollars,  and 

said  premises  have  been  rendered  unfit  for  use  as  business  build- 
ings and  the  rental  value  thereof  destroyed;  that  plaintiff  has 
been  deprived  of  the  uses,  rents,  and  profits  of  said  proerty; 
and  that  said  defendant  has  not  taken  any  steps  to  ascertain 
the  said  damages  to  the  plaintiff  and  said  defendant  has  not 
compensated  said  plaintiff  in  any  way  for  said  damages  so  done 
to  his  said  property,  but  refuses  so  to  do :  and  so  plaintiff  says 

that  he  has  been  damaged  as  aforesaid  in  the  sum  of 

dollars,  and  therefore  he  sues. 

h 

For  that  whereas,  on  the day  of , 

19. .,  the  plaintiff  was  possessed  of  and  the  owner  of  lot  number 

(Describe  the  property)  in  the  county  of and 

state  of  Illinois,  and  has  since  that  time,  hitherto,  remained 
possessed  of  and  the  owner  of  said  real  estate,  and  did  at  that 
time  and  has  continuously,  since,  occupied  the  same  as  a  place 
of  residence  and  as  her  home.  And  at  that  time  had  a  con- 
venient, safe,  and  level  grade  outlet  into   street 

and  street  in  said  city,  and  safe  and  convenient 

access  to  and  from  her  said  house  until  the  committing  of  the 
said  several  grievances  herein  mentioned,  had  a  good  and  safe 
outlet  for  the  water  falling  upon  said  premises  and  passing  over 

the  same.     And  whereas,   the    railway  company 

are  possessed  of  and  operating  certain  railway  tracks  and  right 
of  way  across street  in  said  city  near  and  adja- 
cent to  the  premises  of  the  plaintiff  aforesaid,  and  the  north 
and  west  line  of  plaintiff 's  said  premises ;  and  whereas,  the  said 


CASE  639 

defendant  did  on  the day  of ,  19 . . , 

erect  and  maintain  a  certain  overhead  bridge  over  and  above 

its  said  tracks  on  said  street  and  across  its  said 

right  of  way  and  tracks  there,  it  became  and  was  the  duty  of 
the  said  defendant  to  so  erect  and  maintain  the  approaches  to 
said  bridge  as  not  to  injure,  impede,  and  inconvenience  the 
access  of  the  plaintiff  from  her  residence  aforesaid,  to  and  from 

said  and  streets,  and  so  as  not  to 

impede  check  or  diminish  the  flow  of  water  from  off  the  prem- 
ises of  the  plaintiff  aforesaid  and  to  furnish  and  place  suitable 
and  sufficient  drains  or  culverts  under  and  through  said  bridges 
to  permit  water  falling  upon  or  passing  over  the  premises  of 
the  plaintiff  aforesaid,  to  be  carried  away  and  off  her  premises ; 
and  it  became  and  was  the  duty  of  the  defendant  to  so  erect 
said  approaches  as  not  to  in  any  way  damage  or  injure  the 
market  value  of  said  premises  or  in  any  way  to  damage  or 
injure  her  in  the  use  of  the  same  as  a  residence  and  home.  And 
the  plaintiff  avers  that  the  defendant  disregarding  its  duty  in 

the  premises  did  on,  to  wit,  the day  of , 

19..,  unlawfully  negligently,  carelessly  and  recklessly,  build 
and   erect,   and   has  since   until   now,    unlawfully   negligently, 

recklessly  and  carelessly  maintained  on  said streets 

adjacent  to  the  front  of  plaintiff's  premises  aforesaid,  and  the 
residence  house  thereon,  a  very  high,  narrow  and  steep  approach 
made  of  dirt  only  and  has  placed  therein  no  drains  or  culverts 
by  means  of  which  the  water  can  run  or  be  carried  away ;  by 
means  of  which  said  approach  so  negligently,  carelessly  unlaw- 
fully and  recklessly  built  and  erected  as  aforesaid,  the  water 
which  falls  upon  or  passes  over  the  plaintiff's  premises  aforesaid 
has  been  dammed  up  and  remains  on  said  premises,  and  is  pre- 
vented from  running  or  being  carried  away  and  off  plaintiff's 
premises,  causing  said  premises  to  become  a  lake  or  pond, 
greatly  damaging  and  injuring  its  use  and  enjoyment  by  said 
plaintiff,  and  greatly  diminishing  its  market  value,  to  the  dam- 
age, etc.^^ 

(Virginia) 

For  this,  to  wit,  that  during  the  year  19. .,  the  said  plaintiff 
owned  in  fee  simple,  and  occupied  a  home  and  lot,  on  the  corner 

of   street  and   avenue,  in  the  toAvn 

of ,  Virginia,  that  the  dwelling  house  on  the  said 

lot  was  erected  by  the  plaintiff  many  years  ago,  and  was  occu- 
pied by  her,  her  husband  and  family.  That  she  laid  out  a  beau- 
tiful  lawn    on   the   north    side   of   her  house   which    faces   on 

street,  and  on  the  ........  side  of  her  dwelling 

house  which  faces  on  avenue,  and  made  and  laid 

19  Shrader  v.  Cleveland,  Cincin- 
nati, Chicago  &  St.  L.  By.  Co.,  242 
111.  232. 


640  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

out  the  same  in  conformity  to  the  then  natural  and  existing 
grades.  That  she  planted  the  lawns  in  grass,  shrubbery  and 
shade  trees,  that  she  also  laid  out  a  back  yard,  wood  lot  and 
garden  and  built  a  carriage  house  and  other  out  houses,  the 

outlet  to  the  same  being  on avenue,  this  avenue 

running  north  and  south  along  the  full  length  of  her  premises. 
And  the  plaintiff  planted  fruit  and  shade  trees  and  berries  and 
vines  on  said  lot  in  conformity  to  the  then  existing  grade,  and 
also  erected  upon  the  said  lot  fences  and  cross  fences,  all  of 
which  improvements  with  the  dwelling  house  are  worth  at  least 

5^ ,  and  on  these  premises  the  plaintiff  with  her  family 

had  lived  in  peace  and  quiet  for years,  when  the  defend- 
ant during  the  year  19. .,  came  upon avenue  with 

shovels,  picks,  plows,  carts,  teams  and  laborers,  etc.,  and  dug 
down  said  avenue  or  street  and  dug  down  the  grade  of  the  same 
along  her  entire  lot,  so  that  the  cut  in  said  street  at  the  east 
gate  of  the  plaintiff's  lot  in  her  yard  is  about  four  feet  and 
about  the  same  depth  below  the  entrance  to  the  back  yard  and 
wood  yard,  making  entrance  to  the  lot  very  difficult,  the  lot 
unsightly  and  will  result  in  the  destruction  of  the  trees  and 
fences  of  the  said  plaintiff  on  the  said  street.  That  there  is  no 
way  to  give  plaintiff  an  outlet  to  said  avenue  except  by  cutting 
down  the  east  side  of  her  lot,  destroying  her  fruit  and  shade 
trees,  her  vines  and  shrubbery  and  her  lawns,  etc.,  and  injuring 
her  garden,  so  that  the  consequential  damages  to  her  lot  is  very 
great  from  the  grading  down  of  the  said  street.  And  that  she 
has  only  a  front  entrance  to  her  lot  and  no  available  entrance 
to  her  back  yard  and  garden. 

By  means  of  which  several  premises  the  said  plaintiff  hath 
been  and  is  greatly  injured  and  damaged;  by  the  deterioration 

of  the  value  of  her  said  lot,  lying  on  the  corner  of 

street  and avenue,  at ,  Virginia,  and 

also  by  the  damage  to  her  dwelling,  out-houses,  yard,  lawn,  shade 
trees,  shrubbery,  back  yard,  wood  lot,  fences,  vineyard,  garden, 
fruit,  fruit  trees  and  fruit  vines,  etc.,  standing  and  being  on 
said  lot.    To  the  damage  of  the  said  plaintiff  of  $ 

1280  Collateral  note,  wrongful  surrender,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the    

day  of ,  19 . . ,  to  wit,  at  the  county  of 

aforesaid,  the  said  plaintiff  and  said ,  in  considera- 
tion of  a  loan  of  money  then  and  there  made  by  said  bank  to 
the  said  plaintiff,  executed  and  delivered  to  the  said  bank  a 
certain  note  in  writing,   commonly   called  a  promissory  note, 

dated  the day  of , , 

whereby  said  plaintiff  and  said days  after  the 

date  of  said  note,  jointly  and  severally  promised  to  pay  to  the 

order  of  the  said  bank,    dollars,  at  the  office  of 

said  bank,  with  interest  at   per  cent  per  annum  after 


CASE  641 

due  until  paid,  in  and  upon  which  note  the  said was 

then  and  there  a  surety  only,  and  the  said  plaintiff  was  then 
and  there  the  principal  maker;  and  the  said  plaintiff  at  the 
said  time  of  the  execution  and  delivery  of  said  note  to  said 

bank,  to  wit,  on  the  said   day  of   , 

to  wit,  at  the  county  of   aforesaid,  delivered  to 

said  bank  and  said  bank  then  and  there  accepted  from  the  said 
plaintiff,  in  the  pledge  and  as  collateral  security  for  the  said 

note  so  made  by  said  plaintiff  and  said  to  said 

])ank,  a  certain  other  promissory  note  in  writing  then  owned 

and  possessed  by  said  plaintiff,  dated  the day 

of made  by  one ,  whereby  said 

promised  to  pay  to  the  order  of  ,   

year  after  the  date  thereof,  the  sum  of  dollars, 

with  interest  at  the  rate  of per  cent  per  annum,  which 

said  note  so  made  by  said had  before  said  delivery 

thereof  to  said  bank  been  endorsed  in  blank,  without  recourse, 

by  said  ,  and  delivered  to  said  plaintiff,  and  was 

at  the  said  time  of  the  delivery  thereof  to  said  bank  of  great 

value,  to  wit,  of  the  value  of   dollars.     And  the 

said  plaintiff  further  avers,  that  upon  the  delivery  of  said  note 

so  made  by  said   to  the  said  bank  as  aforesaid, 

to  wit,  on  said day  of • . , ,  and 

at  the  county  aforesaid,  it  became  and  was  the  duty  of  said 
bank  to  safely  keep  the  same  and  to  have  the  same  ready  to 
return  to  the  said  plaintiff  upon  the  payment  by  said  plaintiff 
of  the  said  note  made  as  aforesaid  by  said  plaintiff  and  said 

to  said  bank ;  yet,  the  said  bank  and  the  said 

other  defendants  herein,  well  knowing  the  premises,  contriving 
and  intending  to  injure  the  said  plaintiff  in  this  behalf  and  to 
prevent  the  said  plaintiff  from  having  and  repossessing  him- 
self of  the  said  note  made  by as  aforesaid,  on,  to 

wit,  the day  of ,  19 .  . ,  to  wit,  at 

the  county  of aforesaid,  and  before  the  maturity 

of  the  said  note  made  as  aforesaid  by  said  plaintiff  and  said 

to  said  bank,  and  while  said  bank  still  held  said 

note,  so  made  by  said ,  of  and  for  said  plaintiff 

in  pledge  as  collateral  security  as  aforesaid,  did  wrongfully  take 
and  surrender  and  deliver  the  said  note,  so  made  as  aforesaid 

by  said ,  to  the  said and  did  convert 

and  dispose  of  the  same  to  their  own  use ;  whereby  the  same  be- 
came and  is  wholly  lost  to  said  plaintiff,  and  whereby  the  said 
plaintiff  has  been  and  is  greatly  injured,  to  wit,  at  the  county 
aforesaid.    To  the  damage,  etc.^o 

20  Post  V.   Union  National  Bank, 
1.59   111.   421,  426    (1896). 


642  ANNOTATED  FORMS  OP  PLEADING   AND   PRACTICE 

1281  Condemnation,  abandonment,  action 

A  petitioner  in  a  condemnation  suit  is  liable  for  damages  re- 
sulting from  a  failure  to  elect  to  pay  the  judgment  or  to  aban- 
don the  condemnation  proceedings  within  a  reasonable  time  of 
the  rendition  of  the  judgment.  These  damages  accrue  and  are 
payable  to  the  person  who  owns  the  property  at  the  time  the 
wrongful  delay  takes  place.^i 

1282  Condemnation,  abandonment,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of 

,  19 . . ,  the  plaintiff  was,  to  wit,  in  said  county,  the  owner 

of  certain  real  estate,  situated  in  said  county,  which  was  then 
and  there  known  and  described  as  follows,  to  wit:  (Insert 
description  of  land)  ;  that  said  land  was,  at  the  time  and  place 
aforesaid  situated  within  the  corporate  limits  of  the  city  of 

,  in  said  county ;  that  said  city  of  

had  become  prior  to  the    day  of   , 

19. .,  and  then  was,  to  wit,  in  the  county  aforesaid,  incorporated 
under  an  Act  of  the  general  assembly  of  the  state  of  Illinois, 
entitled  "An  Act  to  provide  for  the  incorporation  of  cities  and 
villages"  in  force  July  1,  1872;  that  the  common  council  of  said 

city  of  ,  had,  prior  to  the  day  of  

19. .,   passed   an  ordinance  providing  for  the  opening  of  an 

alley  from street  to street,  between 

street,  all  of  which  streets  were  then  and  there 

in  said  city  of ,  which  ordinance  was,  at  the  time 

and  place  aforesaid,  in  full  force  and  effect ;  and  that  said  ordi- 
nance provided  that  said  alley  should  pass  over  the  west 

feet  of  the  east of  lot addition  to 

owned  by  the  plaintiff  as  aforesaid. 

And  plaintiff  avers  that  said  city  of   ,  did,  on 

to  wit,  the day  of ,  19 . . ,  in  pursu- 
ance of  said  ordinance,  file  in  the  circuit  court  of 

county,  its  petition  praying  that  the  just  compensation  to  be 
made  for  private  property  to  be  taken  or  damaged  for  the  pur- 
pose specified  in  said  ordinance  shall  be  ascertained  by  a  jury ; 
but  that  the  defendant,  although  it  well  knew  that  plaintiff  was 
the  owner  of  said  land,  did  not  name  him  as  a  party  thereto ;  that 
the  said  petition  was  then  and  there  an  incumbrance  upon  said 

west feet  of  said  east  half  of  said  lot owned  by 

the  plaintiff  as  aforesaid  and  also  a  damage  to  the  remainder 

of  the  east of  said  lot  not  intended  to  be  taken  for 

said  purpose;  and  that  by  means  of  the  premises  it  then  and 
there  became  and  was  the  duty  of  said  defendant  to  prosecute 

21  Winkelman  v.  Chicago,  213  111. 
360,  363,  365   (1905). 


CASE  643 

said  petition  to  a  judgment  with  all  promptness  which  was 
reasonably  possible,  so  as  to  save  the  plaintiff  harmless  from 
all  unnecessary  damage  accruing  from  the  continuance  of  the 
incumbrance  of  the  said  petition,  or  otherwise  in  case  the 
defendant  should  elect  to  abandon  the  purpose  of  opening  said 
alley. 

Yet  the  defendant  although  it  (defendant  herein)  had  the 
right  to  obtain  a  hearing  of  said  petition  within  six  months 
after  the  time  the  same  was  filed,  utterly  disregarded  its  duty 
in  the  premises  and  negligently  and  wrongfully  failed  for,  to 

wit,  over years  to  bring  said  petition  to  trial,  although 

it  had  caused  to  be  tried  before  the  trial  of  the  petition  above 

mentioned  over,  to  wit  similar  petitions  filed  in 

said  court,  commenced  subsequently  to  the  filing  of  said  peti- 
tion, and  did  not  bring  said  petition  to  a  trial  until,  to  wit, 
,19... 

And  the  plaintiff  avers  that  upon  said  trial  a  jury  was  em- 
paneled and  sworn  to  ascertain  the  compensation  to  be  paid 
for  land  taken  or  damaged  by  the  opening  of  said  alley,  and 

after  hearing  evidence,  said  jury  on,  to  wit, ,  19 .  . , 

in  the  county  aforesaid  returned  their  verdict  finding  that  com- 
pensation should  be  made  to  the  owner  of  the  west feet 

of  the  east of  said  lot of dollars, 

and  that  compensation  should  be  made  to  the  owner  of  the 

remainder  of  said  east of  lot not  taken  for 

damages  thereto  occasioned  by  the  taking  of  said  west 

feet  of    dollars ;   and  said  circuit  court,   on,   to 

wit,  the  day  of ,  19.  .,  to  wit,  in  said  county,  ren- 
dered judgment  upon  said  verdict,  which  judgment  still  remains 
in  full  force  and  effect. 

And  the  plaintiff  avers  that  said  defendant  did,  on,  to  wit, 

the    day  of    ,   19 .  . ,  in  the   county 

aforesaid,  elect  to  abandon  said  improvement  and  has  abandoned 
the  same. 

And  the  plaintiff  avers  that  by  reason  of  the  pendency  of 
said  petition  from  the  date  of  its  filing  until  the  time  when 
said  improvement  was  abandoned,  as  aforesaid,  said  east  half 

of  said  lot became  unsalable,  and  the  sale  thereof  at 

its  cash  value  prevented ;  of  all  which  defendant  then  and  there 
had  notice. 

And  plaintiff  avers  that  at  the  date  of  the  filing  of  said  peti- 
tion said  land  was  of  the  fair  cash  market  value  of 

dollars  per  front  foot  and  said  land  was  then  and  there 

feet  wide  in  front,  and  that  during  the  pendency  of  said  peti- 
tion there  was  a  steady  decline  in  the  value  of  real  estate  in  the 

city  of   ,  of  which  defendant  then  and  there  had 

notice;  and  the  said  land  of  this  plaintiff  shared  in  said  decline, 
so  that  at  the  time  of  the  abandonment  by  defendant  of  said 
improvement  as  aforesaid,  it  was,  and  still  remains  of  the  fair 
cash  market  value  of,  to  wit, dollars  per  front  foot,  and 


644  ANNOTATED   FORMS  OF   PLEADING    AND   PRACTICE 

not  more,  against  the  loss  to  plaintiff  occasioned  by  said  decline, 
he  might  but  for  his  being  therefrom  prevented  by  the  pendency 
of  said  petition,  have  saved  himself  by  sale  of  said  hind,  of  wliicli 
the  defendant  then  and  there  had  notice.  But  tlie  plaintilf 
avers  that,  by  reason  of  the  pendency  of  said  petition  and  the 
abandonment  thereof  as  above  set  forth,  tlie  phiinliff  has  sus- 
tained a  loss  of    dollars  on  each   front  foot  of 

said  east  of  said  lot  ,  and  that  by  means  of 

the  premises  his  private  property  has  been  damaged  for  a  public 
use  without  just  compensation. 

And  the  plaintiff  avers  that  by  reason  of  the  filing  of  said 
petition,  he  was  obliged  in  order  to  meet  tlie  issues  therein  pre- 
sented to  and  did  employ  counsel  and  obtain  the  attendance 
and  the  testimony  of  expert  witnesses  to  testify  to  the  value 
of  said  land  and  to  the  fact  that  the  part  thereof  not  proposed 
to  be  taken  would  be  damaged  by  taking  from  its  original  width 

of feet,  said  west feet,  and  the  plaintiff  was  also 

thereby  obliged  to  and  did  obtain  the  services  of  a  stenographer 
to  take  stenographic  notes  of  the  proceedings  at,  and  the  evi- 
dence given  upon  said  trial,  and  produce  a  transcript  of  such 
notes;  of  all  of  which  the  defendant  then  and  there  had  notice. 
And  the  plaintiff  avers  that  the  fair  and  reasonable  value  and 
customary  charges  of  such  counsel,  witnesses,  and  steno.srapher 
for  services  and  attendance  upon  such  trial  was  then  and  there, 
to  \v\t, dollars,  which  the  plaintiff  has  paid. 

And  the  plaintiff  avers  that  by  reason  of  the  abandonment 
of  said  improvement   the   plaintiff  has  been   deprived   of   the 

pecuniary  benefits  of  said  trial  and  said dollai-s 

has  been  thereby  taken  from  him  by  defendant's  action  without 
just  compensation. 

Wherefore,  etc. 

1283  Collision  wagon,  Narr.  (Md.) 

For  that  the  plaintiff  at  the  time  of  the  injuries  complained 

of  was  a  merchant  dealing  in ;  that  the  defendant 

was  at  the  same  time  operating  a  system  of  street  railway  cars 

in  the  city  of ;  that  on  the day  of 

,  19. .,  at  about o'clock  in  the 

noon  a  horse  and  wagon  containing  goods  of  said  plaintiff  and 

driven  by  plaintiff's  servant  while  attempting  to  cross  ^ .  . 

street  at  the  intersection  of street  in  said 

city,  were,  without  fault  or  negligence  on  the  part  of  said  plain- 
tiflP  or  his  servants,  struck  violently  by  a  car  of  said  defend- 
ant driven  recklessly  and  at  high  rate  of  speed  by  one  of  its 
servants  and  that  said  hoi-se  and  wagon  were  thereby  badly 
injured  and  the  plaintiff  suffered  grave  loss  to  his  goods  and 
trade.    And  the  plaintiff  claims  $ therefor. 


CASE  645 

1284  Conspiracy  concerning  local  improvement,  action 

A  contractor  and  local  improvement  board  who  enter  into  a 
conspiracy  to  construct  an  inferior  improvement  from  the  one 
specified  in  the  contract  and  ordinance,  are  personally  liable  to 
a  property  owner  who  is  specially  injured  by  the  carrying  out 
of  the  conspiracy.  This  is  so  with  reference  to  public  officers, 
because  they  owe  a  duty,  ministerial  in  its  character,  to  the  in- 
dividual property  owners  along  a  public  improvement  to  com- 
ply with,  and  enforce  compliance  with,  the  ordinance  and  con- 
tract for  the  purpose  of  benefiting  and  increasing  the  value  of 
each  owner's  property,  at  least,  to  the  extent  of  the  assessment 
laid  upon  it;  and  this  duty  is  different  from  the  general  duty 
the  officers  owe  to  the  public  generally. 2- 

1285  Conspiracy  concerningf  local  improvement,  Narr.  (111.) 

For  that  whereas  heretofore,  and  at  the  time  of  the  commit- 
ting by  the  defendants  of  the  grievances  hereinafter  mentioned, 
the  plaintiff  was,  and  from  thence  hitherto  has  been  and  still 
is,  the  owner  of  a  certain  parcel  of  land  situate  in  the  village 

of in  the  county  aforesaid,  described  as  (Insert 

description  of  property)  ;  and  the  defendants,  G  and  C,  were, 
and  each  of  them  was,  then  and  there  acting  as  members  of  the 
board  of  trustees  of  said  village  and  also  acting  as  members  of 
the  board  of  local  improvements  of  said  village,  and  the  defend- 
ant M  was  a  contractor  exercising  and  carrying  on  the  busi- 
ness  of  building,   and   improving  roads  and   pavements;   and 

whereas,  also,  on,  to  wit,  the day  of , 

1 .... ,  the  president  and  board  of  trustees  of  said  village,  in 
pursuance  of  a  resolution  adopted  by  the  board  of  local  im- 
provements of  said  village,  passed  an  ordinance  for  the  improve- 
ment, by  special  assessment,  of  a  certain  system  of  streets  con- 
sisting of  avenue  and  certain  portions  of 

street  and  the  intersections  thereof  with  other  streets 

and  alleys  in  said  village,  by  grading,  filling,  curbing,  gutter- 
ing, macadamizing  and  otherwise  improving  said  streets  and 
portions  thereof,  in  accordance  with  certain  plans  and  specifi- 
cations therein  contained,  in  such  manner  that  the  roadway 
upon  said  system  of  streets  should,  when  completed,  be  smooth, 
hard,  solid  and  unyielding  throughout;  which  said  ordinance, 
plans  and  specifications  are  now  here  presented  to  the  court 
and  ready  to  be  produced  upon  the  trial  hereof  or  as  the  court 
may  direct.  And  the  plaintiff  avers  that  in  pursuance  of  said 
ordinance,  certain  lands  and  lots  along  the  line  of  said  improve- 

22  Gage  V.  Springer,  211  111.  200, 
204  (1904). 


646  ANNOTATED   FORMS   OF    PLEADING   AND    TRACTICE 

inent  which  would  be  specially  beuefited  by  the  construction  of 
said  improvement  in  accordance  with  the  said  ordinance,  plans 
and  specitications,  including  the  said  parcel  of  land  so  owut-d 
by  the  plaintitf,  which  the  plaintitl"  avers  would  also  iiave  been 
specially  benefited  thereby,  were  assessed  to  pay  the  cost  thereof, 
and  a  petition  for  the  confirmation  of  said  assessment  was,  on, 

to  wit,   ,  filed  in  the  county  court  of  siiid 

county,  and  was  afterwards,  on,  to  wit,    , 

confirmed  by  said  court;  all  of  which  will  more  fully  and  at 
large  appear  from  the  records  and  proceedings  of  said  court  in 
the  matter  of  said  petition,  rt'ady  to  be  produced  on  the  hear- 
ing hereof  or  as  the  court  shall  direct. 

And  the  plaintiff  avers  that  the  amount  so  levied  as  special 
benefits  against  the  said  lands  and  lots,  to  pay  for  the  construc- 
tion of  said  improvement,  was  the  sum  of,  to  wit,  $ ,  and 

that  the  amount  levied  and  assessed  as  special  l)enefits  against 
the  said  parcel  of  land  so  owned  by  the  plaintiff,  was  the  sum 

of,  to  wit,  $ ;  and  the  plaintiff"s  said  parcel  of  land  was 

then  and  there  of  great  value,  to  wit,  $ 

And  the  plaintiff"  further  avers  that  the  said  ordinance  for 
said  improvement  so  passed  by  the  president  and  board  of  trus- 
tees of  said  village,  provided  that  the  work  upon  said  improve- 
ment should  be  done  under  the  direction,  inspection  and  super- 
vision of  the  board  of  local  improvements  of  said  village;  tiiat 
the  cost  thereof  should  be  paid  for  by  special  assessment  in 
accordance  with  an  Act  of  the  general  assembly  of  this  state 
entitled,  "An  Act  Concerning  Local  Improvements,"  approved 

,   and  all  amendments  thereto,   and  that  of   the 

amount  of  said  assessment  the  sura  of  $ should  be 

applied  to  the  payment  of  the  expenses  attending  the  proceed- 
ings for  making  said  improvement  and  the  cost  of  making  and 
collecting  said  assessment ;  that  the  aggregate  amount  levied  for 
said  improvement  and  each  individual  assessment  so  levied 
and  assessed  should  be  divided  into  ten  instalments,  the  same 

to  be  due  and  payable,  respectively,  on  the   day 

of ,  in  each  year  following  the  confirmation  of  said 

assessment  until  all  should  be  paid,  each  instalment,  except  the 

first,  to  bear  interest  at  the  rate  of per  cent  per  annum 

from  the  date  of  such  confirmation.  That  for  the  purpose  of 
anticipating  the  collection  of  the  second  and  succeeding  instal- 
ments of  said  assessment,  said  ordinance  provided  that  bonds 
should  be  issued,  payable  out  of  said  instalments,  bearing  in- 
terest at  the  rate  of  per  cent  per  annum,  payable  an- 
nually, and  that  said  improvement  should  be  so  constructed 
that  the  various  parts  thereof  should  be  joined  and  connected 
in  such  manner  as  to  make  the  whole  work  uniform  and  com- 
plete and  a  connected  system. 

And  the  plaintiff  further  avers  that  after  the  passage  of  said 

ordinance,  as  aforesaid,  and,  on,  to  wit,  the day  of , 

1....,  the  said  G  and  C,  who  were  then  and  there  acting  as 


CASE  647 

members  of  the  board  of  local  improvements  of  said  village,  did, 
in  pursuance  of  the  authority  conferred  upon  said  board  of 
local  improvements  by  said  ordinance  and  the  said  Act  of  the 
general  assembly,  undertake  the  direction  and  supervision  of 
the  construction  of  said  improvement,  and  said  G  and  C, 
together  with  one  F,  who  were  then  and  there  acting  as  the 
board  of  local  improvements  of  said  village,  did  then  and  there 
enter  into  a  certain  agreement  in  writing  with  the  defendant, 
M,  for  the  construction  of  said  improvement  for  the  contract 

price  of,  to  wit,  $ ,  the  same  to  be  paid  to  said  M  in 

bonds  and  vouchers,  payable  out  of  the  special  assessments  so 
levied  as  aforesaid,  which  said  agreement  in  writing  provided 
for  the  construction  of  said  improvement  in  substantial  com- 
pliance with  the  terms  and  provisions  of  said  ordinance,  and 
provided  that  all  the  work  upon  said  improvement  should  be 
executed  in  the  best  and  most  workmanlike  manner  and  no  im- 
proper materials  should  be  used,  but  that  all  materials  of  every 
kind  should  fully  answer  the  specifications  therefor;  which 
said  agreement,  together  with  the  specifications  therein  referred 
to  and  made  a  part  thereof,  are  ready  to  be  produced  upon  the 
hearing  hereof  or  as  the  court  shall  direct. 

And  the  plaintiff  further  avers  that  the  said  M,  in  pursuance 
of  said  agreement  in  writing,  then  and  there  undertook  the  con- 
struction of  said  improvement  and  did,  then  and  there  and 
thereafter,  make  and  construct  upon  said  system  of  streets  so 
ordered  by  said  ordinance  to  be  improved,  as  aforesaid,  a  cer- 
tain pretended  pavement  which  was  not  made  and  constructed 
in  accordance  with  the  terms  of  said  ordinance  and  said  con- 
tract, but  was  different  from  and  inferior  in  quality  to,  and 
cheaper  in  cost  than  the  said  improvement  so  provided  by  said 
ordinance ;  and  the  said  G  and  C,  acting  at  the  time  aforesaid 
as,  and  constituting  a  majority  of,  the  said  board  of  local  im- 
provements, and  colluding  and  conspiring  with  the  said  M, 
and  contriving  and  unjustly  intending  to  injure  the  plaintiff 
and  the  plaintiff's  said  property,  and  conspiring  and  intending 
to  injure  the  said  owners  of  the  property  so  specially  assessed, 
as  aforesaid,  improperly,  unlawfully,  wantonly  and  maliciously 
permitted  said  M  to  construct  said  pavement  in  a  manner  differ- 
ent from  and  inferior  to  and  cheaper  in  cost  than  the  improve- 
ment so  provided  for  by  said  ordinance,  and  acquiesced  in,  and 
encouraged  the  construction  thereof  as  the  same  was  constructed, 
and  afterwards  wantonly  and  maliciously  and  in  bad  faith 
accepted,  in  violation  of  their  duty  to  the  plaintiff,  the  said  dif- 
ferent and  inferior  and  cheaper  improvement  as  a  compliance 
by  said  M  with  the  terms  of  said  ordinance  and  the  provisions 

of  said  written  agreement ;  and  thereafter,  to  wit,  on  the 

day  of   ,  1 ,  the  said  defendants,  G 

and  C,  conspiring  with  the  said  M  to  injure  the  plaintiff  and 
the  plaintiff's  property,  and  the  owners  so  assessed  for  said 
improvement,   as  aforesaid,   wantonly   and  maliciously  and  in 


C48  ANNOTATED   FORMS  OP   PLEADING    AND   PRACTICE 

bad  faith,  caused  to  be  issued  to  said  M,  bonds  for  the  payment 
of  the  contract  price  of  Siiid  iinprovt'iiimt  and  hir^nly  in  «'Xr»-js8 
thereof,  such  excess  amounting;  in  the  aggregate  to  a  large  sum 
of  money,  to  wit,  the  sum  of  $ 

And  the  plaintiff  further  avers  that  the  roadway  so  by  said 
ordinance  ordered  to  be  improved  upon  siiid  system  of  stn^eta, 
was  not,  nor  was  any  portion  thereof,  when  completed,  smooth, 
hard,  solid  and  unyielding  thi-oughout,  but  was  rough  and  un- 
even, soft,  muddy,  yielding  antl  incapable  of  sustaining  the 
ordinary  and  usual  traflic;  that  the  cost  of  said  improvement, 
as  the  same  was  constructed  and  accepted,  was  very  mueh  less 

than  and  not  to  exceed,  to  wit, per  cent  of  the  amount 

of  the  assessment  so  levied,  as  aforesaid ;  and  the  said  variances 
from  and  disregard  of  the  terms  and  provisions  of  siiid  ordinance 
and  contract  were  occasioned  by  a  wilful,  wanton  and  nudicious 
disregard  of  the  re(iuireiiients  of  said  ordinance  and  contract 
by  the  defendants  and  were  the  result  of  a  combination  and 
collusion  among  them  for  the  pun^xse  of  injuring  the  plaint itf 
and  others  assessed  to  pay  for  said  improvement,  and  for  the 
purpose  of  wrongfully  and  unlawfully  increasing,  in  favor  of 
said  M,  the  proportion  of  money  over  the  expense  of  construct- 
ing said  improvement,  to  the  ilamage  and  in  fraud  of  the  rights 
of  the  plaintitT;  all  of  wiiich  matters  and  things  were,  at  the 
times  of  the  making  and  doing  thereof,  respectively,  well  known 
to  the  defendants. 

And  by  reason  of  the  committing  of  the  Siiid  several  griev- 
ances by  the  defendants,  the  plaintitT  has  not  received  the  bene- 
fit of  the  improvement  for  which  the  plaintiff's  said  land  was 
assessed,  and  the  pretended  improvement  as  constructed  and 
accepted  is  an  injury  to  the  plaintitT  and  a  detriment  to  iier  sai<l 
property,  and  the  plaintitT's  said  property  is  greatly  depre- 
ciated in  value  thereby.  And  the  plaintifl'  was  also  then  and 
there  compelled  to,  and  did  lay  out  a  large  sum  of  money,  to 

wit,  the  sum  of  $ ,  so  assessed  against  the  plaintitT's 

said  land,  in  order  to  prevent  the  sale  thereof  under  and  by 
virtue  of  the  revenue  laws  of  the  state  of  Illinois;  and  also 
thereiiy  the  plaintitT's  said  property  became  and  was  and  is 
(>neumbered  ajul  subject  to  a  lien  for  the  amount  so  a.s.se.ssed 
against  it  as  aforesaid,  with   interest  thereon,  to  wit,  the  sum 

of   $ ;    and    the    plaintitT   has    otherwise    been    greatly 

thereby  injured  in  her  property  and  estate.  And  other  wrongs 
the  defendants  to  the  plaintiff  then  and  there  did.  To  the  dam- 
age, etc. 

1286  Conspiracy  in  restraint  of  trade,  action 

Any  person  or  combination  of  persons  who  directly  or  indi- 
rectly cause  injury  to  a  person's  lawful  business  by  their  wilful 
interference  therewith  are  liable  for  all  damages  sustained  by 


CASE  649 

him.-3  All  parties  to  a  conspiracy  to  ruin  the  business  of 
another  are  liable  for  all  overt  acts  illegally  done  pursuant  to 
the  conspiracy  and  for  a  consequent  loss,  whether  they  were 
active  participants  or  not.^^ 

1287  Conspiracy  in  restraint  of  trade,  Narr.  (111.) 

For  that  whereas,  for  a  long  space  of  time,  to  wit, 

years  next  prior  to  the  committing  by  the  defendants  of  the 
several  grievances  hereinafter  mentioned,  the  plaintiff  was  a 
manufacturer  of  and  dealer  in  bricks,  and  was  the  owner  and 

possessed  of  certain  lands  and  buildings  at ,  in  the 

state  of  Illinois,  which  were  in  use  by  him  as  such  manufacturer, 
which  said  lands  and  buildings  were  then  and  there  fully 
adapted  to  and  eciuipped  for  said  business ;  and  the  plaintiff  had 
then  and  there  expended  large  sums  of  money,  to  wit,  the  sum 

of ($ )  dollars,  in  ac(|uiring  and  equipping 

the  said  land  and  premises  for  the  manufacture  of  brieks  as 
aforesaid  in  his  said  business,  and  was  then  and  there,  to  ^^^t, 
during  the  said  period  of  time,   engaged  in  the   manufacture 

of  bricks,  and  in  selling  the  same  in  the  county  of , 

and  state  of  Illinois,  and  the  sale  of  such  bricks  was  then  and 
there,   to  wit,   during   said    period,   almost    exclusively   in    the 

county  of   aforesaid ;  and  the  plaintiff  was  then 

and  there,  to  wit,  during  said  period,  in  the  receipt  of  large 
j)rofits  and  gains  from   his  said  business,  and  especially  from 

liaving  a  market  for  bricks  in  the  said  county  of ; 

and  the  said  business  was  then  and  there,  to  wit,  during  the 
period  aforesaid,  of  great  value  to  the  plaintiff,  and  would  have 
so  continued  to  be,  except  for  the  several  grievances  against 
him  by  the  defendant  committed,  as  hereinafter  set  forth. 

And  the  said  plaintitT  avers  that  on  the  day  and  year  first 
aforesaid,    and    thenceforth    until    the    commencement    of    this 

suit,  tliere  was  in  tlie  said  county  of   a  certain 

corporation  organized  and  existing  under  the  laws  of  the  state 

of    known  as   C,   one  of  the  defendants  herein, 

which  said  association  has  for  a  long  space  of  time,  to  wit,  from 
the  date  first  aforesaid  and  since  hitiierto,  comprised  and  had 
among  its  members  a  large  proportion,  to  wit,  two  thirds  of  all 
the  persons  and  firms  wlio.  during  said  space  of  time,  have  been 

engaged  in  the  said  county  of in  the  business  of 

constructing  brick  and  mason  work,  and  in  purchasing  and 
obtaining  supplies  of  brick  to  be  used  in  said  county,  which 
said  membership  of  said  corporation  has,  during  the  said  space 
of  time,  comprised  substantially  all  the  responsible  and  reliable 
persons  or  firms  engaged  in  said  business  of  constructing  brick 

23  Purington  v.  Hinchliff,  219  HL  «*  Purington  v.  Hinchlifif,  supra. 

159,   166    (1905). 


650  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

and  mason  work  in  said  county,  and  in  purchasing  and  obtain- 
ing supplies  of  hnck  to  ln'  usfd  in  said  county. 

And  the  phiintitl"  avers  that  lor  a  long  period,  to  wit, 

years  prior  to  the  day  and  year  lirst  aforesaid,  the  nienjbers  of 

said   association    constructed   a    large    portion,    to    wit 

per  cent  of  the  brick  and  mason  wojk  in  siiid  county  of 

and  during  the  said  period  the  plaintitT  made  sales  of  substan- 
tially all  of  the  brick  of  his  manufai-ture,  anil  all  that  could 
be  manufactured  at  his  aforesaid  plant,  to  the  members  of  said 
C,  from  which  sales  he  derived  large  profits  and  gains,  to  wit, 

the  sum  of    ($ )    dollars   annually,    for   a 

long  space  of  time,  to  wit,  prior  to  the  date  first  aforesaid,  and 
during  said  j)frio(l  of   years. 

And  said  i)laintitT  further  avers  that  at  the  date  tirst  afore- 
said, and  thereafter,   up   to  the  time  of  the  bringing  of  this 

suit,  there  was  in  said  of a  certain 

voluntary  organization  or  association  of  individuals  known  as 

H  of   ,  which  said  association  tlu-n  and  there 

eomprised  and  had  among  its  members  a  large  proportion,  to 

wit,    per  cent    of   the    manufacturers   of    brick    in   sjiiil 

county,  the  members  of  which  said  association  were  manufac- 
turers of  and  dealers  in  and  sellers  of  briek  in  s^iid  county. 

And  the  plaintitf  avers  that  the  defendant,  1),  was  then  and 
there,  to  wit,  at  the  date  aforesaid,  and  since  hitherto  has  been, 
and  still  is,  a  member  of,  and  the  president  of  said  C,  and  the 
defendants,  P,  W,  A  and  L,  were  then  and  there,  to  wit,  dur- 
ing said  period,  and  still  are.  members  of  the  said  H,  and 
engaged  in  the  business  of  numufacturing  and  selling  brick;  and 
that  there  existed  at  the  date  tii-st  aforesaid,  and  since  hitherto 
has  existed,  a  certain  organization,  being  a  voluntary  associa- 
tion of  individuals,  which  association  has  been  and  still  is  known 

as  the  U  No of  the  I  U,  otherwise  called  and  known  and 

hereinafter  designated  as  X,  which  said  organization  or  associ- 
ation comprises  and  contains  among  its  membership  a  large  per- 
centage, to  wit, per  cent  of  the  competent  brick  layers 

of  said  county. 

And  the  plaintitT  further  avers  that  while  he,  the  said  plain- 
tiff, was  lawfully  and  peacefully  conducting  his  business  as  a 
manufacturer  of  and  dealer  in  brick  as  aforesaid,  to  wit,  at  the 
date  tirst  aforesaid,  and  since  hitherto,  the  said  defendants, 
well  knowing  the  premises,  and  wrongfully  and  unlawfully 
conspiring,  combining,  confederating  and  contriving  to  injure 
the  said  plaintitV  in  his  aforesaid  business,  and  to  deprive  him 
of  the  legitimate  profits  which  he  would  otherwise  have  derived 
therefrom,  wrongfully  and  corruptly  conspired  and  agreed 
among  themselves,  and  caused  to  be  agreed  by  said  C  and  the 
members  thereof,  that  such  members  should  not  purchase,  nor 
be  permitted  to  purchase,  any  brick  to  be  used  by  them,  or 
any  of  them,  from  any  person,  firm  or  corporation  except  such 
as  had  subscribed  to  the  rules  and  regulations  of  the  said  C,  to 


CASE  651 

which  said  rules  and  regulations  the  said  plaintiff  had  not  then 
and  there  subscribed,  and  to  which  rules  and  regulations  the 
said  plaintifl'  was  then  and  there  under  no  obligation  to  sub- 
scribe; all  which  the  said  defendants  then  and  there  well  knew. 

And  the  plaintiff  further  in  fact  says  that  the  said  B  wrong- 
fully and  corruptly  took  action,  assuming  to  bind  and  pledge 
its  members,  and  each  of  them,  not  to  handle  or  lay  any  brick 
manufactured  by  any  person  who  had  not  subscribed  to  the 
said  rules  and  regulations  of  the  said  C,  which  said  rules  and 
regulations  were  then  and  there  inimical  to  the  legal  rights  of 
the  said  plaintiff  in  his  business  aforesaid,  and  were  then  and 
there  calculated  and  intended  to  injure,  prejudice  and  inter- 
fere with  the  plaintiff's  said  business,  and  wrongfully  and  un- 
lawfully to  deprive  him  of  the  legitimate  gains  and  profits  of 
his  said  business,  and  to  destroy  the  said  business  of  the  said 
plaintiff',  which  said  action  or  pledge  was  then  and  there,  and 
since  thereto  has  been  accepted  and  acted  upon  by  said  mem- 
bers and  by  the  said  defendants,  severally  and  respectively,  to 
wit,  at  the  county  aforesaid. 

And  the  said  plaintiff  further  avers  that  after  the  making  of 
the  said  supposed  agreements  and  pretended  pledges  as  afore- 
said, and  with  the  unlawful  and  corrupt  purpose  of  injuring, 
prejudicing  and  interfering  with  the  i)laintiff's  said  business 
in  that  behalf,  and  of  preventing  and  precluding  him  from  con- 
ducting sai(.l  business  in  said  county  of ,  with  any 

advantage  or  profit  whatever,  the  said  defendants,  to  wit,  on 
tile  day  and  year  first  aforesaid,  and  at  divers  other  times,  to 

wit,  at  said  county  of ,  procured  sundry  persons 

to  go  to  the  customers  of  the  plaintiff,  and  to  attend  at  the 
place  and  places  where  bricks  of  the  plaintiff  were  bought  to 
be  used  in  the  construction  of  sundry  buildings  in  said  county 

of ,  ami  then  and  there  wrongfully  and  corruptly 

represented  to  the  siiid  customers  and  to  the  workmen  who  had 
then  and  there  been  engaged  or  were  employed  to  lay  and 
work  with  the  bricks  of  the  said  plaintiff,  that  if  they,  the  said 
customers,  or  they,  the  said  workmen,  should  purchase  or  use 
the  bricks  manufactured  by  the  plaintiff,  such  customers,  and 
such  workmen  would  be  prevented  and  hindered  from  complet- 
ing or  proceeding  with  any  building  or  structure  in  said  county 
upon  which  it  was  proposed  to  use  the  bricks  of  the  plaintiff; 
and  at  divers  times  and  places  in  said  county,  from  the  date 
first  aforesaid,  and  since  hitherto,  said  defendants,  in  further- 
ance of  their  unlawful  conspiracy  and  combination  in  that 
behalf,  have  by  divers  wrongful  threats,  including  the  imposi- 
tion of  fines  upon  persons  dealing  in  or  using  the  bricks  of  said 
plaintiff  in  said  county,  in  fact  prevented  sundry  customers  of 
the  plaintiff  from  purchasing  bricks  from  the  plaintiff,  and 
from  completing  with  such  bricks  the  contracts  in  which  such 
brick  would  have  been  used,  and  have  also  wrongfully  and  un- 
lawfully prevented  workmen  upon  sundry  buildings  and  struc- 


652  ANNOTATED   FORMS  OP   PLE.VDING   AND   PR-\CTICE 

tures  in  said  county  from  using  or  laying  thf  luiiks  of  the 
plaintitt* ;  and  the  defonihints  then  and  thcri'  iiiadf  divers  wrong- 
ful, unkwful  and  malicious  threats  in  the  pri'iiiises,  and  caused 
such  wrongful,  unlawful  and  malicious  threats  to  hecome  gen- 
erally known  among  the  persons  wlio  would  otherwise  have 
been  customers  of  said  plaintitT  for  bricks,  so  that  many  of  such 
customers  have  been  wrongfully  deterred  from  buying  or  using 
the  bricks  of  the  plaintitt'  as  they  would  then  and  there  have 
done  but  for  the  wrongful,  unlawful  and  malicious  conduct  of 
the  defendants  as  aforesaid. 

And  that  by  means  of  the  several  supposed  agreements  here- 
inbefore mentioned,  and  of  the  aforesiiid  wrongful,  unlawful 
and  malicious  acts  and  interferences  of  the  defendajits,  and  the 
aforesaid  unlawful  conspiracy  in  tiiat  behalf,  the  plaintilf  has 
been  and  still  is  entirely  and  wholly  deprived  of  the  benefit 
of  sales  of  bricks  in  said  county,  which,  but  for  the  aforesaid 
wrongful,  unlawful  and  malicious  agreements  and  acts  of  the 
defendants,  he  would  have  had  and  enjoyed;  that  the  plaintiff 
has  been  and  still  is  unal)le  to  sell  or  dispose  of  bricks  in  said 
county,  as  he  might  and  otherwise  would  have  been  able  to  do, 
and  has  lost  and  been  deprived  of  divers  large  gains  and  profits 
which  he  might  and  would  have  acquired  from  such  sales  in 
the  county  aforesaid;  and  that  the  business  of  the  plaintilf  haa 
been  aiid  is  greatly  damaged,  injured  and  rendered  much  less 
profitable  than  the  same  would  otherwise  have  been,  and  the 
value  of  his  said  lands  and  buildings  used  as  aforesaid  in  the 
manufacture  of  bricks  has  been  greatly  depreciated  and  injured. 

And  other  wrongs  the  said  defendants  to  the  said  plaintiff 
then  and  there  did.     To  the  damage,  etc. 

1288  Conspiracy  to  alienate  wife's  affections,  Narr.  (Mich.) 

For  cause  of  action  said  plaintiff  avers  that  she  was  married 

to  said   defendant ,   on  or   about    , 

19.  .,  and  that  he  is  a  son  of  the  defendants, and 

;  that  prior  to  said  nuirriage,  said  plaintiff  lived 

for  a  long  period  of  time  with  her  parents  in  the  city  of , 

and  that  shortly  after  said  marriage  she  took  up  her  abode  with 

her  said  husband,  and  kept  house  at   ,  Michigan, 

where  her  husband  was  engaged  in  the  general  mercantile  busi- 
ness with  the  defendant, ,  under  the  firm  name  of 

,  and  in  which  business  her  said  husband  owned 

and  held  a  large  interest,  to  wit,  $ and  upwards. 

That   her   married   life    was   happy    until    said    defendants, 

and   ,  undertook  to  intermeddle  in 

the  relations  existing  between  herself  and  her  husband,  and  to 
dominate  and  control  his  treatment  of  her. 

That   having   acquired   a   dislike    to   the  plaintiff,    the   said 

and    undertook  to  bring  about  a 

separation  of  the  plaintiff  and  her  husband,  and  to  accomplish 


CASE  653 

which  purpose  alienated  her  husband's  affections,  and  induced 
him  to  commence  and  prosecute  a  divorce  suit  against  the  plain- 
tiff in  the  circuit  court  for  the  county  of ,  which 

occasioned  the  plaintiff  much  mental  anguish  and  sufferings, 
and  loss  of  support  of  her  husband,  to  recover  which  she  sued 

the  said  defendants,    and    ,  in  this 

court. 

That  while  the  said  suit  and  the  divorce  suit  was  pending, 

the  said  defendants,   and   ,  made  a 

settlement  with  the  plaintiff  of  the  loss  involved  in  said  suit, 
and  as  part  consideration  therefor  they  agreed  to  and  did  deed 

to  lier  certain  real  estate  in  the  city  of   of  the 

value  of,  to  wit,  $ ,  and  promised  and  assured  plaintiff 

that  if  she  would  forgive  her  husband  for  his  alleged  miscon- 
duct in  the  premises  and  would  again  live  and  cohabit  ^vith 

him,  that  the  said  defendants, and  , 

would  in  no  manner  intermeddle  in  their  marriage  relations, 
or  attempt  to  influence  her  husband  to  her  detriment  or  disad- 
vantaj^'e,  and  that  her  said  husband  should  and  would  close  out 

his  interest  in  the  business  at and  remove  to  and 

reside  at ,  and  remove  his  household  effects  thereto, 

and  there  live  and  keep  house  with  the  plaintiff,  and  that  her 
said  husband  would  engage  in  business  with  the  plaintiffs 
father,  in  which  he  would  be  enabled  to  earn  more  than  suffi- 
cient to  meet  the  wants  and  re(iuirements  of  said  plaintiff  and 
lier  husband. 

That    believing    that    said    defendants,     and 

,  would  in  good  faith  refrain  from  molesting  said 

plaintiff,  and  from  interfering  or  intermeddling  with  her  or 
her  husband's  affairs,  and  from  influencing  her  husband  to 
her  detriment,  and  would  not  thereafter  seek  to  alienate  her 
husband's  affection  that  she  would  again  regain  by  living  and 
cohabiting  with  him,  said  plaintiff  consented  to  and  did  dis- 
continue her  suit  against  the  defendants,   and 

aforesaid,  without  costs,  and  released  them  from 

her  claims  involved  in  said  suit,  and  consented  to  the  with- 
drawal of  the  divorce  suit  by  her  husband  without  costs,  and 
again  lived  and  cohabited  with  her  husband,  and  together  they 

planned  the  establishment  of  their  home  at  ,  and 

rejoiced  in  the  outlook  for  a  bright  and  happy  future,  and 
plaintiff  again  regained  and  was  possessed  of  the  affection  of 
her  husband,  and  but  for  the  committing  of  the  grievances  by 
defendants,  hereinafter  alleged,  would  be  still  living  happily 
with  her  said  husband  in  their  home  at  the  city  of 

Plaintiff  further  avers  that  upon  said  adjustment,  her  said 
husband  provided  her  with  temporary  moneys  for  her  support, 
together  with  his  assurance  that  she  would  be  properly  and 
regularly    cared    for    by    him,    and    soon    thereafter    went    to 

with   the  intention  and  purpose  of  closing  out 

his  interest  in  the  business  of  said ,  and  removing 


654  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

the  plaintiff's  household  furniture  and  effects  to , 

which  were  at  a  former  home  in ,  and  shortly  join 

her  there  and  begin  housekeeping. 

Plaintiff   further   avers   that  the   defendants,    

and ,  were  very  much  wrought  up  at  their  being 

obliged  to  transfer  to  plaintiff  in  the  settlement  aforesaid,  the 
real  estate  hereinbefore  mentioned,  and  on  frequent  occasions 
thereafter  importuned  her  to  re-deed  it  to  them,  and  then  and 
there  in  various  ways  and  by  divers  pretexts  hampered  her  in 
the  use  and  occupation  thereof  and  in  obtaining  the  rents  accru- 
ing therefrom,  and  well  knowing  that  plaintiff  would  not  be 
moved  by  their  importunities  to  comply  with  their  wishes,  they 
became  very  much  embittered  towards  her,  and  determined  to 
coerce  her  into  re-transferring  the  said  property  to  them,  or 
either  of  them,  and,  if  necessary,  in  the  accomplishment  of  such 
purpose  to  estrange  her  from  her  husband,  and  deprive  her  of 
her  home,  her  husband's  affection,  society  and  support. 

Thereupon  said  defendants,  and , 

conniving   with    and    acting    in    concert    with    the    defendant, 

,  who  was  a  close  friend  and  adviser  of  theirs, 

determined  to  force  the  plaintiff  to  re-deed  the  property,  and 
in  the  accomplishment  of  which  purpose,  said  defendants  con- 
spired to  bring  about  a  separation  between  plaintiff  and  her 
husband,  and  to  alienate  his  affection  from  her,  and  to  induce 
him  to  withhold  from  her  his  society,  a  home  and  support. 

That  said  defendants,  in  pursuance  of  such  plan  and  scheme, 
acting  jointly  and  severally,  well  knowing  that  the  said  de- 
fendants,   and ,  dominated  and  con- 
trolled her  husband's  mind  and  will,  and  could  easily  influence 

his  actions  in  the  premises,  on,  to  wit,  the day  of 

,  19. .,  and  upon  divers  days  and  times  between 

that  date  and  the  time  of  the  commencement  of  this  action  at, 

to  wit,  the  city  of and  various  places,  jointly  and 

severally,  wrongfully  and  wickedly  carried  on  a  secret  corre- 
spondence with  her  said  husband,  and  held  various  clandestine 
meetings  with  him,  and  by  means  of  false  reports  of  and  con- 
cerning the  plaintiff,  communicated  by  them,  or  some  of  them, 
and  by  various  other  arts  and  devices,  did  wrongfully  and 
wickedly  alienate  and  destroy  her  husband's  affections  for  her, 
which  she  had  heretofore  gained  and  was  possessed  of,  and  then 
and  there  induced  and  persuaded  him  to  refuse  to  longer  give 
her  his  affection,  comfort,  fellowship,  assistance  or  support,  and 
poisoned  his  mind  against  plaintiff,  caused  and  procured  her 
husband  to  fail  and  neglect  to  furnish  her  with  the  means  of 

support,  well  knowing  that  she  was  at   without 

means  of  support,  and  that  it  was  her  husband's  intention  to 
send  her  moneys  weekly  therefor,  and  caused  and  induced  her 
husband  to  refrain  from  writing  to  her,  or  answer  her  letters 

to  him,  and  from  furnishing  her  with  means  to  go  to , 

in  order  that  she  might  visit  her  husband  and  use  her  wifely 


CASE  655 

influence  to  awaken  him  to  an  appreciation  of  his  duties  and 
obligations  in  the  premises. 

That  in  order  to  more  effectively  carry  out  their  said  plans 
and  to  completely  dominate  and  influence  her  husband  in  his 

conduct  towards  plaintiff,   the  said   defendants,    

and    ,   gave  up   their  residence  in    , 

where  they  had  lived  for  a  great  many  years,  only  making  occa- 
sional trips  to ,  removed  to  and  established  their 

residence  at  aforesaid,  and  have  since  continued 

and  still  reside  there. 

That  in  further  pursuance  of  said  plans  and  schemes,  and 
in  order  that  the  plaintiff  would  be  deprived  of  her  support, 

they,  said    and    ,  have  caused  and 

procured  plaintiff's  husband  to  make  fictitious  transfers  of  his 
interest  in  said  business  and  certain  real  estate  which  was  sit- 
uated in  the  city  of and  elsewhere,  and  of  which 

he  was  heretofore  the  owner,  to  divers  persons  unknown  to 
plaintiff,  and  caused  a  report  to  be  circulated  and  published  at 
and  aforesaid  that  her  said  hus- 
band had  no  longer  any  interest  in  the  business,  and  was  with- 
out means,  and  then  and  there  persuaded  her  husband  to  with- 
hold all  financial  support  and  assistance  to  the  plaintiff",  thereby 
subjecting  her  to  much  humiliation,  shame  and  disgrace,  and 
causing  her  to  deny  herself  of  the  comfort  she  had  enjoyed, 
and  would  have  enjoyed  in  the  society,  home,  support  and  pro- 
tection of  her  husband,  but  for  the  misconduct  and  wrongful 
acts  of  said  defendants  in  the  premises. 

Plaintiff  further  avers  that  on  or  about  the day 

of ,  19.  .,  believing  that  if  she  went  in  person  to 

,  she  might  by  her  wifely  influence  convince  her 

husband  of  the  great  wrong  and  injustice  he  was  doing  to  her 
in  allowing  himself  to  be  influenced,  dominated  and  directed 

by  his  said  parents,  and  induce  him  to  come  to   

with  her  to  live,  and  in  furtherance  of  such  purposes  to  assist 
her  in  removing  the   furniture  and  effects,   \\dth  which  their 

former  home  at was  furnished,  and,  accompanied 

by  her  father,  she  went  to   ,  for  the  expense  of 

which  trip  she  was  obliged  to  borrow  the  money,  and  saw  her 

husband,  and  entreated  him  to  go  and  live  with  her  at , 

and  get  away  from  the  domination  and  influence  of  his  parents 
as  aforesaid,  and  where  they  would  be  happy  and  enjoy  their 
married  life. 

Plaintiff  further  avers  that  said   defendants,    

and   ,  had  so  completely  alienated  her  husband's 

affection  and  regard  for  her,  that  he  would  not  give  ear  to  her 
entreaties,  and  refused  to  go  or  live  with  her,  or  assist  her  in 

sending  her  furniture  and  effects  to   ,  or  provide 

her  with  maintenance  and  support;  and  finding  that  her  hus- 
band was  still  under  the  domination  and  control  of  said  defend- 
ants, and  would  not  be  influenced  by  her  or  comply  with  her 


656  ANNOTATED  FORMS  OF   PLEADING  AND   PRACTICE 

wishes,  she  prepared  to  pack  and  ship  her  household  furniture 

and  effects  to ,  and  upon  investigation  found  tliat 

in  furtherance  of  said  plans  herL'Uibi.'fore  mentioned,  tlie  said 

defendants,    and   ,  had  induced  her 

husband,  without  her  knowledge  or  consent,  to  sell  and  dispose 
of  a  large  and  valuable  portion  of  plaintiff's  household  furni- 
ture and  effects,  and  to  secrete  others  and  withhold  them  from 
her;  and  that  in  further  pursuanee  of  said  plans  and  purposes, 
in   order   to   bring   plaintiff   into  disrepute    in   the   community 

at   ,  among  her  friends  and  acquaintances,  where 

she  had  always  enjoyed  a  good  reputation  for  honesty,  integrity 

and   womanly   conduct,   the   defendant,    ,  pursued 

plaintiff'  upon  the  public  street  at   ,  and  without 

cause  or  provocation,  in  the  presence  of  a  number  of  good  and 

worthy  people  living  at , ,  in  a  loud  tone  of  voice, 

called  plaintitT  a  rol)ber  and  tiiief,  and  other  vih>  names,  and 
publicly  threatened  plaintiff  that  unless  she  would  give  back 
the   property   which  she   had  stolen    (meaning   the   real   estate 

which  defendants, and ,  had  deeded 

her),  she  would  make  plaintiff's  life  miserable,  and  on  another 

occasion  on  the  same  day,  at  ,  ,  said 

defendant  informed  i)laintitT  that  she  would  not  permit  her  son 
to  live  with  such  a  wife  who  had  robbed  them  (meaning  her 
and  her  husband)  of  their  property,  and  that  she  would  do  all 
the  harm  and  mischief  she  could;  all  of  which  plaintiff  avers 
was  in  furtherance  of  the  plans  and  schemes  of  the  defendants 
aforesaid;  and  then  and  there  and  in  other  ways,  and  on  other 

occasions,  said  defendant ,  in  pursuance  of  said 

plans  and  schemes,  by  subtle  pretexts  and  in  divers  ways,  sub- 
jected plaintiff  to  much  humiliation,  public  scandal  and  dis- 
grace in  the  connnunity  at   ;  and  in  conse(|uence 

of  said  defendants'  conduct  in  the  premises,  plaintiff  was  obliged 
to  return  to without  her  husband  and  a  consider- 
able portion  of  the  household  furniture  and  effects,  and  without 
the  home  he  was  to  provide  for  her,  and  be  without  his  support, 
society  and  affection,  and  has  by  the  acts  and  misconduct  of 
said  defendants,  jointly  and  severally,  lost  the  affection  of  her 
husband,  and  been  deprived  of  a  home,  and  its  comforts,  and 
his  support  and  financial  assistance  and  his  society  and  protec- 
tion, and  has  suffered  much  shame,  humiliation  and  disgrace. 

Plaintiff  further  avers  that  it  is  the  purpose  and  intention 
of  said  defendants, and ,  in  further- 
ance of  said  plans  and  purposes,  to  continue  to  keep  the  said 
plaintiff  and  her  husband  apart  and  to  continue  to  deprive  her 
of  her  home,  society,  affection,  support  and  protection  of  said 
husband,  and  to  continue  to  harass  and  annoy  plaintiff,  and 

to  scandalize  her  in  the  community  of , 

and  elsewhere,  and  to  hring  her  into  disrepute  among  her 
friends,  relations,  neighbors  and  others,  whereby  she  has  suf- 


CASE 


657 


fered  and  still  suffers  great  damage ;  wherefore  because  of  the 
grievances  herein  set  forth  she  claims  damages  in  the  sum  of. 
to  wit,  $ 

1289  Dishonoring  check,  Narr.  (D.  C.) 

For  that  heretofore,  to  wit,  at  the  time  of  the  happening 
of  the  cause  of  action  hereinafter  set  forth,  the  defendant  cor- 
poration was  engaged  in  doing  a  general  banking  business  in 
the  city  of ,  District  of  Columbia.  That  the  plain- 
tiff was  engaged  in  business  as  proprietor  and  owner  of  a 
in  the  city  of ,  District  of  Columbia, 

and  as   .... .' in   ^°^  ^^'^^  ^"^  ^^^  ^^®" 

for  a  long  time  prior  thereto  a  depositor  in  said  defendant  cor- 
poration bank,  having  on  deposit  with  said  defendant  corpora- 
tion from  time  to  time  divers  large  sums  of  money,  and  at  the 
time  of  the  happening  of  the  grievance  herein  mentioned,  a 
sum  in  excess  of  dollars.  That  it  therefore  be- 
came the  duty  of  said  defendant  corporation  to  honor  any  and 
all  checks  of  the  plaintiff  out  of  any  cash  balance  payable  to 
the  plaintiff  that  might  be  in  its  hands,  and  to  pay  the  same 
when  a  written  order  was  drawn  against  the  said  money  on 
deposit  and  presented  for  payment  in  due  course  of  business. 

That  on   the  plaintiff  gave  a  check  or  order  on 

defendant  corporation,  in  writing,  for  the  sum  of • 

dollars  to   ,  which  check  or  order  was  presented 

for  payment  in  due  and  usual  eourse  of  business  at  the  banking 

house  of   the  defendant   corporation   on  to   wit    , 

during  usual  business  hours.     That  at  the  time  said  check  or 
order  was  presented  for  payment  and  payment  demanded,  the 
plaintiff  had  sufficient  and  ample  funds  deposited  in  said  bank  to 
the  credit  of  the  plaintiff  to  pay  said  check  or  order,  and  it  was 
then  and  there  the  dutv  of  said  defendant  corporation  to  honor 
said  check  or  order.    Yet  the  defendant,  well  knowing  the  prem- 
ises did  wilfullv,  wrongfully  and  unlawfully  refuse  to  pay  said 
check  or  order  and  dishonored  the  same  and  returned  the  same  to 
the  said  payee  with  the  statement  that  there  were  not  sufficient 
funds  to  pay  said  check  or  order,  said  statement  being  made 
in  the  presence  of  a  number  of  persons  who  heard  the  said 
statement,  and  it  was  believed  by  those  who  heard  said  remark 
that  the  plaintiff  had  drawn  a  check  or  order  when  he  did  not 
have  sufficient  funds  on  deposit  in  said  bank  to  pay  the  same. 
That  in  consequence  of  the  wrongful,  wilful  and  unlawful  acts 
of  the  said  defendant  corporation,  the  plaintiff  was  greatly  in- 
jured in  his  credit  and  reputation,  and  that  by  reason  of  the 
premises  the  plaintiff  has   sustained   damages  in  the  sum   ot 
dollars.     Wherefore,  etc. 


658  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

1290  Drainage  inadequate,  action 

An  action  on  the  case  will  lie  against  drainage  commissioners 
for  their  failure  or  neglect  to  furnish  adequate  drainage  by  a 
plan  which  is  practical.-^ 

1291  Drainage  inadequate,  Narr.  (111.) 

For  that  whereas  the  plaintiff,  heretofore,  and  at  the  time 
of  the  committing  of  the  grievances  hereinafter  mentioned,  was 
and  from  thence  hitherto  has  been,  and  still  is,  lawfully  pos- 
sessed of  the  following  described  real  estate,  to  wit :    (Set  forth 

description  of  same)  in  said county,  Illinois,  with 

the  appurtenances,  which  said  lands  and  premises  the  plaintiff 
before,  and  at  the  time,  used  and  enjoyed,  and  of  right  ought 
to  have  used  and  enjoyed,  and  still  of  right  ought  to  use  and 
enjoy,  to  wit,  in  said  county;  that  the  lands  of  the  plaintiff 
aforesaid  heretofore,  and  at  the  time  of  the  committing  of  the 
grievances  hereinafter  mentioned,  were,  and  from  thence 
hitherto  have  been  a  part  and  portion  of  the  lands  contained 

in  and  composing  drainage  district  No , 

counties,  a  certain  drainage  district  located  and  being  in  the 

southern  portion  of  said county  and  in  the  county  of 

,   next  adjoining,  and  which  said    , 

drainage  district  No ,    counties,  was 

long  prior  to  the  committing  of  the  grievances  hereinafter 
mentioned,  organized,  adopted  and  maintained  for  the  pur- 
pose of  furnishing  and  insuring  adequate  and  complete 
drainage  for  the  lands  located  therein,  including  lands  of  plain- 
tiff, and  which  said  drainage  district  No , 

counties,  and  the  benefits  accruing  therefrom  to  the  lands  of 
the  plaintiff,  the  plaintiff,  before  and  at  the  time,  used  and 
enjoyed,  and  of  right  ought  to  have  used  and  enjoyed,  and 
still  of  right  ought  to  use  and  enjoy,  to  wit,  in  said  county; 
that  the  said  defendants,  heretofore  and  prior  to  the  committing 
of  the  grievances  hereinafter  named  and  mentioned,  were,  on, 

to  wit,   the    day   of ,    19. .,    duly 

appointed  by  the  county  court  of  said    ...••• county, 

commissioners  in   and   for  said  drainage   district  No. , 

counties,  duly  qualified  and,  from  thence  hitherto, 

and  still  are,  acting  as  such  commissioners,  as  is  more  fully 
shown  by  the  records  of  said  county  court  ready  to  be  produced 
on  the  hearing  of  this  cause;  that  the  said  defendants,  hereto- 
fore, and  at  the  time  of  the  committing  of  the  grievances  here- 
inafter mentioned,  were  and  from  thence  hitherto,  have  been 
and  still  are  by  virtue  of  the  law  in  such  case  made  and  pro- 

25  Binder  v.  Langhorst,  234  111. 
583,  586  (1908);  Sec.  50,  Levee  act 
(111.). 


CASE  659 

vided,  invested  and  clothed  with  full  power  and  authority  to 
alter,  change,  repair,  regulate  and  maintain  said  drainage  dis- 
trict No ,    counties,  and  the  drains  and 

ditches  contained  therein,  in  such  manner  and  to  such  extent 
as  will  give  and  afford  all  the  lands  embraced  and  contained 
in  said  drainage  district,  full,  adequate  and  complete  drainage, 
including  the  lands  of  the  plaintiff,  which  said  rights  and  bene- 
fits of  drainage  so  accruing  to  the  lands  of  the  plaintiff,  the 
plaintiff  before  and  at  the  time  used  and  enjoyed,  and  of  right 
ought  to  have  used  and  enjoyed,  and  still  of  right  ought  to 
use  and  enjoy,  to  wit,  in  said  county;  that,  heretofore  and  at 
the  time  of  the  committing  of  the  grievances  hereinafter  men- 
tioned, and  from  thence  hitherto,  and  at  the  time  of  the  bringing 
of  this  suit,  by  virtue  of  the  statute  above  mentioned  and  by  vir- 
tue of  their  said  office  as  such  drainage  commissioners,  it  was  the 
duty  of  said  defendants,  and  each  of  them,  to  so  alter,  change, 

repair,  regulate  and  maintain  said  drainage  district  No , 

counties,  and  the  drains  and  systems  of  drainage  con- 
tained therein,  in  such  manner  and  to  such  extent  as  to  give  and 
afford  all  the  lands  embraced  and  contained  within  said  district 
full,  adequate  and  complete  drainage,  including  the  lands  of  the 
plaintiff,  which  said  rights  and  benefits  of  drainage  so  accruing  to 
the  lands  of  the  plaintiff,  the  plaintiff  before  and  at  the  time 
used  and  enjoyed,  and  of  right  ought  to  use  and  enjoy,  to  wit, 
in  said  county;  and  that,  heretofore  and  at  the  time  of  the 
committing  of  the  grievances  hereinafter  mentioned,  and  from 
thence  hitherto,  and  at  the  time  of  the  bringing  of  this  suit, 
the  laws  of  the  state  of  Illinois,  in  such  case  made  and  provided, 
made  and  constituted  the  said  defendants  liable  and  responsible 
for  all  loss  and  damages  accruing  to  the  plaintiff  on  account  of 
the  refusal,  failure  or  neglect  of  said  defendants  to  make  such 
alterations, '  changes,  repairs  and  regulations  in  said  drainage 

district  No ,  counties,  and  the  drains  and 

ditches  therein,  as  may  be  necessary  to  afford  ample  and  com- 
plete drainage  for  all  the  lands  contained  in  said  drainage 
district. 

Nevertheless,  the  said  defendants,  acting  at  the  time  afore- 
said, and  long  before   and  hitherto  have  acted,   and  are  still 

acting  as  such  commissioners  of  drainage  district  No , 

counties,    as   aforesaid,    having   full   power   and 

authority  to  alter,  change,  repair,  regulate  and  maintain  said 

drainage  district  No ,    counties,   and  the 

drains  and  ditches  contained  therein,  contrary  to  the  law  as 
aforesaid,  contriving  and  unjustly  intending  to  injure  the  plain- 
tiff in  the  possession,  use,  occupation  and  enjoyment  of  his  said 
lands  and  premises,  and  to  render  the  same  incommodious  and 
unfit  for  tillage  and  of  little  or  no  use  or  value  to  the  plaintiff, 
and  also  to  hinder  same  from  becoming  commodious  and  fit 
for  tillage  and  of  use  and  value  to  the  plaintiff  while  the  plain- 
tiff was  so  possessed  thereof  and  so  used  and  enjoyed  the  same. 


660  ANNOTATED   FORMS   OP   PLEADING    AND    PRACTICE 

on,  to  wit,  the clay  of ,  19 .  . ,  in  said 

county,  wrongfully  and  unjustly  and  unlawfully,  failed,  refused 
and  neglected  to  alter,  change,  repair,  regulate  or  maintain  said 

drainage  district  No ,   counties,  or  the 

drains  or  ditches  contained  therein,  and  on  divers  times  and 
occasions  thereafter  have  also  failed,  refused  and  neglected  to 
alter,  change,  repair,  regulate  or  maintain  said  drainage  dis- 
trict No ,    counties,   so   as   to   give   and 

afford  the  plaintiff  any  adequate  or  sufficient  drainage  for 
his  said  lands  in  said  drainage  district,  contrary  to  the  law 
in  such  case  made  and  provided;  and  said  commissioners 
wrongfully  and  unjustly  l)uilt  thereupon,  made  and  erected  and 
permitted  to  be  made  and  erected  thereupon,  certain  grades, 
ditches,  embankments,  culverts  and  bridges,  near  to  the  lands 
and  premises  of  the  plaintiff,  in  so  careless,  negligent  and  im- 
proper manner,  and  have  kept  and  continued  said  gi'ades, 
ditches,  embankments,  culverts  and  bridges  for  a  long  space  of 
time,  to  wit,  from  thence  hitherto,  that  by  reason  of  the  afore- 
said wrongful  and  unjust  and  unlawful  actions  of  the  said  de- 
fendants, afterwards,  to  wit,  on  the  day  and  year  aforesaid  and 
on  divers  other  times  thereafter,  and  before  the  commencement 
of  this  suit,  divers  large  quantities  of  rain  water  and  surface 
water  and  standing  water  remained  standing  upon  said  land, 
find  ran  and  flowed  from  said  ditches  through  said  culverts  and 
l)ridges  and  along  said  grade,  and  backed  up  by  said  bridges 
and  other  wrongful  o])structions  in  said  ditch,  ran  and  flowed 
down  to,  upon,  against  and  unto  the  lands  of  the  said  plaintiff, 
regardless  of  the  diligent  efforts  of  the  plaintiff"  to  remove  and 
prevent  the  same,  and  flooded  the  crops,  fences,  soil  and  other 
parts  of  the  plaintiff's  lands,  and  thereby  greatly  damaged  the 
said  lands  and  premises  of  the  said  plaintiff,  and  the  said  crops, 
fences,  soil  and  other  parts  thereof,  and  by  reason  thereof  the 
said  land  and  premises  of  the  said  plaintiff  became  and  were, 
and  are  damaged,  wet,  swampy  and  unfit  for  use,  occupation, 
cultivation  and  tillage.  And  also  by  reason  of  the  premises, 
the  rain  water,  surface  water  and  standing  water  aforesaid  ran 
and  flowed  in  dift'erent  directions  or  channels  and  with  greater 
force  and  increased  velocity  and  impetuosity  than  it  of  right 
ought  to  have  and  otherwise  would  have  done,  into,  upon  and 
against  the  lands  and  premises  of  the  plaintiff,  and  the  crops, 
fences,  soil  and  other  parts  thereof  were  damaged  and  destroyed 
on  account  thereof.     To  the  damage,  etc. 

1292  Drainage  unsanitary,  Narr.  (Miss.) 

That  the  said   ,  for  the  purpose  of  conveying 

away  the  surface  drain  and  water  from  its  streets  and  else- 
where, has  constructed  a  number  of  open  ditches  in  different 
portions  of  said  city ;  that  one  of  said  ditches  has  been  dug  by 
defendant  on  the  . ." side  of street,  and 


CASE  661 


continues  southward  to  •  •  •  ; ' .  f  f,t t'""'""  '"  '''' 

side  of street  for  about 

feet,  where  it  crosses  said street  to  tne   

side ;  and  thence  down  the •  side  ot   •  •  •  •  -■ 

to street  and  thence  on  the siae  oi 

street  in  a  southward  course. 

■  "That'  said  ditch  is  about   feet  deep  and  from 

inai  sdiu  u^^  ^^.^^^  ^^^  .^  ^^p^  ^pg^  without 

^o^er'ing  o^'liningj'ihat  the  bottom  of  said  ^itch  is  uneven  and 
broken  that  in  manv  pLices  there  are  holes  washed  out  in  the 
bottom;  so  that  the  contents  emptying  into  said  ditch  are  greatly 
obstructed  in  passing  through  said  f  ^^'f /^*  ^^^^.^^^  ^  ..  ._ 
That  said  ditch  or  sewer  was  dug  by  defendant  for  the  sole 
nurDOse  of  drainin-  oi?  of  the  surface  water  that  falls  m  times 
K?"  a'nd'lhat  it=is  the  duty  of  the  defendant  to  see  t^.a,  ,, 
same  is  used  for  no  other  purpose,  and  to  keep  the  ditch  m  a 
?eSonably  sanitary'  condition,  so  that  private  property  abutting 
on  the  streets  traversed  by  said  ditch  will  not  be  injured  by 
ovprflow  or  accumulation  of  filth.  . 

That  plaintiif  is  the  owner  of  (Set  forth  legal  description  of 

property),  the  same  being  a  lot  fronting  on ■  ana 

^  . . . .   streets  and  in  the   survey  of  said 

^ity  of  ,  and  has   houses  located 

thereon,  one  fronting  on  and  one  on  . ..... ....  •  • 

streets  The  first  was  built  to  be  occupied  by  the  plaintiff  as 
a  resdence  for  himself  and  family,  the  other  tor  a  tenant ;  and 
?hat  the  said  ditch  nins  in  front  of  both  of  said  houses  and 
within  a  few  feet  of  the  front  porches  of  each.  .■,■,.,, 

Plaintiff  avers,  that  notwithstanding  the  fact  that  said  ditcli 
was  dug  by  defendant  for  the  purpose  of  surface  drainage  alone 
Taid  defendant  has  permitted  the  use  of  it  tor  the  deposit  of 
all  kinds  of  filth  and  sewerage  and  that  this  use  has  continued 
f  '  years;  that  defendant  negligently  permits  the 

use  of' said  ditch  for  emptying  therein  all  manner  ot  sloP  and 

+^ith  .  thnt  within  hundred  feet  of  the  plaintiff  s 

sai^pro^U^^^^^^^  a ...story  hotel    a  boarding 

house  a  barber  shop,  a  drug  store,  bank  and  a  dental  office  all 
emptying  their  slops  and  sewerage  into  said  ditch  by  means  of 
pipes  running  from  said  places  and  emptying  directly  into  said 
d  fch-  that  all  of  the  slop  from  the  kitchen,  from  the  w-ash 

ba^in^,  bath  tubs  and   . .  ."^ of  said  hotel  are  emp  led 

into  said  ditch ;  that  the   story  of  said  hotel  is 

i"sed  as  a  lodg^  hall,  and  that   different  lodges 

use  it  as  a  regular  monthly  meeting  place,  and  a  unnal  is 
attached  to  said  lodge  hall  and  used  by  the  members  during 
their  meetings,  and  at  certain  times  during  these  meetings  there 
is  a  steadv  flow  of  urine  into  said  ditch  and  withm  a  few  feet 
of  plaintiff's  said  property.  That  all  the  slop  and  waste  water 
from  said  barber  shop  is  conveyed  directly  into  said  ditch; 
that  said  drug  store  discharges  all  the  foul  and  noxious  water 


662  ANNOTATED   FOKMS   OF    PLEADING    AND   PRACTICE 

and  gases  resulting  from  the  washing  of  bottles  and  compound- 
ing of  prescriptions,  and  from  a  large  soda  fount  directly  into 
said  ditch;  that  all  the  foul  smelling  water  and  excrement  from 
said  dental  office  and  bank,  and  all  slops  from  the  kitchen  sink 
of  said  boarding  house  also  run  directly  into  said  ditch  or  open 
sewer. 

Plaintiff  further  avers  that  all  of  the  above  mentioned  foul 
smelling  and  noxious  nuitter  flows  into  said  ditch  only  a  few 

feet  of  plaintiff's  said  property,   and   nuikes  its 

way  slowly  down  the  said  ditch  next  to  saiti  property;  tiiat  in 
dry  weather  it  freciuently  puddles  and  stands  in  holes  and  low 
places  in  the  bottom  of  said  ditch  just  opposite  said  property, 
and  always  gives  off  such  a  stench  that  it  renders  said  property 
unfit  for  habitation ;  that  during  the  spring  and  summer  months, 
and  especially  in  dry  weather,  there  is  such  a  foul,  putrid  odor 
and  stench  arising  from  said  diteh  l)ecause  of  said  filth,  sloi)s 
and  excrement  permitted  by  the  defendant  to  flow  therein  that 
it  is  impossible  for  pei-sons  to  sit  on  the  front  porches  of  said 
houses,  and  that  if  the  windows  or  doors  of  the  rooms  be  left 
open  at  night,  a  person  cannot  sleep  in  the  rooms  without  being 
constantly  disturbed  by  said  stench. 

Plaintiff  avers  further  that  he  tried  to  live  in  said  residence 

with  his  family  some   years  ago,  and  during  the 

whole  time  he  occupied  the  same  he  and  his  family  were  con- 
stantly annoyed  by  said  stench;  that  it  was  not  only  uni)leas- 
ant  and  tlisagreeal)le,  but  members  of  his  family  were  almost 
constantly  sick  as  a  result  of  said  unsanitary  condition  of  said 
ditch;  that  upon  the  advice  of  his  physician  he  moved  his  family 
away  from  said  premises;  and  that  he  has  been  advised  by  his 
physician  that  it  will  not  be  safe  to  return  to  the  place  so  long 
as  said  ditch  remains  in  the  said  condition. 

Plaintiff  further  avers  that  because  of  said  unsanitary  con- 
dition of  said  ditch,  he  has  been  unal)le  to  rent  said  property 

for  the  past  years  except  for  a  short  while  at  a 

time;  that  tenants  will  not  rent  the  property  because  of  the 
disagreeable  scent  arising  from  said  ditch ;  that  a  reasonable 

rental  value  of  said  property  for  the  past  years 

would  be dollars ;  and  that  plaintiff  has  lost  that 

sum  because  of  the  unsanitary  condition  of  said  ditch. 

Plaintiff'  further  avers  that  said  property  has  been  greatly 
reduced  in  value,  in  fact,  so  much  so,  that  it  is  practically  worth- 
less so  long  as  said  ditch  remains  in  its  present  condition. 

Plaintiff  further  avers  that  said  ditch  has  been  so  used  by 

said  parties  for  the  past    years  or  longer,   and 

that  said  unsanitary  condition  and  said  stench  and  disagree- 
able odor  was  fully  known  to  the  defendant;  that  said  parties 
used  said  ditch  for  the  purposes  aforesaid  with  the  full  knowl- 
edge and  consent  of  the  defendant;  and  that  the  plaintiff  often 
requested  said  defendant  either  to  place  tiling  in  said  ditch 
or  to  stop  the  use  of  it  by  said  parties  for  the  deposit  and  dis- 


CASE 


663 


charge  of  said  slop,  filth  and  excrement ;  but  that  the  defendant 
has  wholly  failed  to  do  either  and  has  continued  to  permit  the 
use  of  said  ditch  for  said  purposes;  all  to  the  plaintiff's  dam- 
age in  the  sum  of dollars.    Wherefore,  etc. 

1293  Excessive  levy,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of , 

19.  .,  said  plaintiff  was  indebted  to  the  defendant  on 

promissory  notes  in  the  sum  of    dollars,  said 

notes  having  been  originally  given  for  about  the  sum  of 

dollars,  on  which  the  plaintiff  was  then  and  there  entitled  to  a 

credit  i'n  the  sum  of dollars ;  and  the  defendant, 

well  knowing  the  premises,  wilfully  and  maliciously,  and  for 
the  purpose  of  oppressing  and  wronging  the  plaintiff  and  in- 
juring him  in  his  credit,  but  by  virtue  of  the  power  of  attorney 

attached  to  said  notes,  procured  a  judgment  in  the 

court  of  the  county  of ,  and  state  aforesaid, 

against  the  plaintiff  upon  said  notes,  in  the  sum  of 

dollars,  without  notice  to  the  plaintiff;  and  then  and  there 
caused  execution  to  be  issued  on  said  judgment,  and  placed  the 
said  execution  in  the  hands  of  the  sheriff  of  said  county.  And 
further,  in  pursuance  of  said  purpose  to  wrong  and  oppress  the 
plaintiff,  and  to  injure  him  in  his  aforesaid  standing  and  credit, 
the  defendant  wilfully  and  maliciously  directed  and  caused  the 
sheriff*  aforesaid  to  levy  said  execution  upon  all  and  singular 
of  the  goods  and  chattels  of  the  plaintiff  of  the  value,  to  wat, 
dollars,  and  wrongfully  and  maliciou.sly  di- 
rected the  sheriff  to  take  and  hold  said  goods  and  chattels,  and 
all  of  the  same,  by  virtue  of  said  levy  and  execution;  and 
then  and  there  caused  the  said  sheriff  to  hold  all  of  said  goods 

and  chattels  for  a  long  time,  to  wit,  for  the  space  of . 

months  next  thereafter;  by  reason  of  which  said  levy  the  plain- 
tiff' was  unable  to  have  or  use  said  goods  and  chattels,  and  was 
thereby  greatly  damaged  in  his  credit  and  financial  standing, 
and  was  then  and  there  put  to  great  expense,  to  wit,  the  sum  of 

dollars,  in  setting  aside  said  judgment  and  in 

defending  said  suit. 

Plaintiff  further  avers  that  the  said  judgment  for 

dollars  in  said  court  was  set  aside  and  this  plaintiff  was  per- 
mitted to  make  his  defense  of  payment  of  all  that  was  due  on 

said  notes,  excepting   dollars,  and  that  said  suit 

was  fullv  terminated  before  the  commencement  of  this  action. 

Plaintiff  further  avers  that  he  was  also  then  and  there  thereby 
greatly  hindered  and  prevented  from  transacting  his  ordinary 
affairs.     To  the  damage,  etc. 

1294  Explosion  of  powder  magazine,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of , 

19 . . ,  in  the  county  of aforesaid,  the  plaintiff  was 


664  ANNOTATED   FORMS  OP   PLEADING    AND   PRACTICE 

the  owner  of  and  possessed  of  a  certain  lot  of  household  furni- 
ture (Describe  furniture)  then  located  and  being  on  tlie  follow- 
ing described  premises,  to  wit  (Describe  property),  situate  in 

the  said  county  of   ;  that  he  was  also  the  owner 

of  and  possessed  of  a  certain  blacksmith  shop  then  located  and 
being  upon  the  certain  lot  or  parcel  of  ground  next  west  and 
adjoining  the  premises  above  described,  and  the  blacksmith 
tools  therein  contained;  and  that  he  was  also  the  owner  of  and 
possessed  of  a  certain  other  building,  to  wit,  a  certain  frame 
dwelling  located  and  being  on  the  following  described  premises, 
to  wit  (Describe  property),  in  the in  said  county.* 

And  the  said  defendant,  on  the  day  aforesaid,  in  the  county 
aforesaid,  was  possessed  of  the  following  described  property,  to 

wit  (Describe  property),  situated  in  the in  the 

said  county. 

And  it  then  and  there  became  and  was  the  duty  of  the  de- 
fendant to  so  use,  occupy  and  conduct  the  premises  so  possessed 
by  it  as  aforesaid  so  as  not  to  endanger  or  jeopardize  the  build- 
ings and  property  of  the  i)lainti(f  hereinbefore  described,  and 
not  to  store  upon  its  said  lot  or  parcel  of  ground  any  danger- 
ous or  explosive  substance  or  compound  whereby  the  property 
of  the  plaintitf  might  be  destroyed  by  reason  of  the  premature 
or  accidental  explosion  of  such  explosive  substance  or  com- 
pound. 

Yet  the  defendant,  not  regarding  its  duty  in  that  behalf, 
on,  to  wit,  the  day  aforesaid,  in  the  county  aforesaid,  kept  and 
maintained  on  and  upon  the  premises  of  the  defendant  herein- 
before described,  a  certain  inaga/ine  of  gunpowder,  dynamite, 
gun  cotton  and  other  dangerous  and  explosive  compounds;  and 
plaintiff  avers  that  the  defendant  then  and  there  had  stored 
in  the  said  magazine  upon  the  said  premises  a  large  amount  of 
gunpowder,  dynamite  and  gun  cotton,  said  gunpowder,  dyna- 
mite and  gun  cotton  then  and  there  being  higlily  explosive  ai.d 
dangerous  substances  and  compounds. 

And  plaintitf  further  avers  that,  on,  to  wit,  the  day  aforesaid, 
in  the  county  aforesaid,  the  said  gunpowder,  dynamite  and 
gun  cotton  and  other  explosives,  then  and  there  kept  in  said 
magazine  by  the  defendant,  exploded,  and  by  means  of  such 
explosion  the  material  of  which  said  magazine  was  constructed 
was  then  and  there  driven  with  great  force  and  violence  upon 
and  against  the  property  of  the  plaintiff  hereinbefore  described, 
and  a  concussion  of  the  air  of  great  force  and  violence  was 
then  and  there  caused  by  said  explosion. 

2.  (Consider  first  count  to  star,  as  here  repeated,  the  same 
as  if  set  out  in  words  and  figures.) 

And  then  and  there  was  in  full  force  and  effect  in  the  said 

a   certain  ordinance  known   as  section    ....    of 

chapter  ....  of  the  revised  ordinances  of  the of 

,  which  said  section   ....   was  and  is  as  follows, 

to  wit:    (Set  forth  ordinance). 


CASE  665 

And  then  and  there,  by  reason  of  and  in  accordance  with  the 
ordinance  aforesaid,  it  became  and  was  the  duty  of  the  defend- 
ant not  to  erect  or  maintain  any  powder  magazine  or  place  used 
for  storing  gunpowder  or  other  explosive  material  on  any  lot, 
the  size  or  area  of  which  was  such  that  the  boundaries  thereof 
were  less  than  twenty  rods  distant  from  the  walls  of  any  such 
magazine  or  place. 

Yet  the  defendant,  not  regarding  its  duty  in  that  behalf,  on, 
to  wit,  the  day  and  year  aforesaid,  kept  and  maintained  a 
powder  magazine  or  place  for  storing  gunpowder  or  other  ex- 
plosive material  within  the of afore- 
said, which  said  powder  magazine  was  located  on  the  following 
described  premises,  to  wit  (Describe  premises),  the  size  or  area 
of  which  was  such  that  the  boundaries  thereof  were  less  than 
twenty  rods  distant  from  the  walls  of  the  said  powder  maga- 
zine or  place  of  storing  gunpowder  or  other  explosives,  to  wit, 
on  the  day  and  year  aforesaid,  contrary  to  the  provisions  of 
the  ordinance  aforesaid. 

And  the  defendant  then  and  there  had  and  kept  in  said  mag- 
azine large  quantities  of  gunpowder,  dynamite  and  gun  cotton, 
said  gunpowder,  dynamite  and  gun  cotton  being  then  and  there 
explosive  materials. 

And  the  said  plaintiff  further  avers  that,  on,  to  wit,  the  day 
aforesaid,  in  the  county  aforesaid,  said  powder  magazine  was 
then  and  there  struck  by  lightning,  by  means  whereof  raid  ex- 
plosive materials  tlien  and  there  kept  in  said  magazine  by  the 
defendant  exploded,  and  by  means  of  such  explosion  the  mate- 
rial of  which  said  magazine  was  constructed  was  then  and  there 
driven  with  great  force  and  violence  upon  and  against  tiie  prop- 
erty of  the  plaintiff  hereinbefore  described ;  and  a  concussion 
of  the  air  of  great  force  and  violence  was  then  and  there  caused 
by  said  explosion. 

And  the  said  horse  of  the  plaintiff  was  then  and  there  struck 
with  a  large  stone  then  and  there  driven  with  great  force  and 
violence  by  reason  of  such  explosion,  and  was  then  and  there 
greatly  bruised  and  wounded,  from  the  effects  of  which  wounds 
and  bruises  the  said  hoi-se  of  the  plaintiff  afterward,  to  wit,  in 
one  day,  died. 

And  the  following  property  of  the  plaintiff  was  hit  by  rocks 
and  stones  propelled  with  great  force  and  violence  by  means 
of  such  explosion,  and  was  wrecked  and  torn  by  means  of  the 
concussion  of  the  air  then  and  there  caused  by  said  explosion, 
and  was  totally  destroyed  and  lost,  and  was  of  great  value,  to 

wit,  household  furniture  of  the  value  of dollars ; 

one  horse  of  the  value  of dollars ;  one  blacksmith 

shop  of  the  value  of dollars ;  blacksmith  tools  of 

the  value  of  dollars. 

And  the  plaintiff  by  means  of  such  explosion  sustained  great 
damage  to  said  buggy,  wagon  and  sleigh  of  fhe  plaintiff,  and 
was  obliged  to  and  did  lay  out  and  expend  in  and  about  repair- 


666  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

ing  the  same,  the  sum  of dollars ;  that  the  build- 
ing of  the  plaintiff  so  as  aforesaid  located  and  being  upon  the 
said  lots  in  said  (Describe  property)  was  then  and  there  by 
reason  of  said  explosion  and  the  concussion  of  the  atmosphere 
caused  thereby,  greatly  torn,  wrecked  and  damaged,  and  plain- 
tiff was  obliged  to  and  did  then  and  there  lay  out  and  expend 

in  and  about  repairing  the  said  building,  the  sum  of 

dollars. 

And  other  damage  was  then  and  there  sustained  by  the  said 

plaintiff  by  reason  of  the  premises,  to  the  extent  of 

dollars,  by  means  whereof  the  plaintiff'  has  sustained  damage 
to  the  sum  of dollars.'-*^ 

1295  False  return,  Narr.  (111.) 

For  that  whereas,  the  defendant .  .  on,  to  wit,  the 

day  of ,  19.  .,  was  sheriff'  of  the  county  aforesaid, 

and  on  that  day  the  plaintiff'.  .  delivered  to  him  a  certain  writ 
of  fieri  facias  or  execution  issued  out  of  and  under  the  seal  of 
the  court  of  county,  state  of  Illi- 
nois, duly  attested  by  the  clerk  thereof  and  dated  said 

day  of   ,   19..,   directed   to  the  sheriff  of  said 

county,  commanding  him  that  of  the  lands  and 

tenements,  goods  and  chattels  of  C,  trading  as   , 

in  his  county,  he  should  cause  to  be  made  the  sum  of 

dollars,  which  plaintiff',  .  then  lately  in  the court 

of county,  at  a  term  thereof  begun  and  held  at 

the  city  of   ,  in  said  county  on  the   

Monday  of ,  19. . ,  had  recovered  against  the  said 

defendant  therein  named  C,  and  which  by  the  said  court  was 
adjudged  to  the  said  plaintiff".  .  for  .  .he.  . .  .  damages;  and  also 

the  further  sum  of   doUare  which  was  adjudged 

to  the  plaintiff.  .  for  .  .h.  . .  .  costs  and  charges  in  that  behalf 
expended,  whereof  the  defendant  therein,  C,  was  convicted,  as 

appears  by  the  record  of  said court,  and  that  he 

should  have  those  moneys  ready  to  render  to  the  plaintiff. .  for 
..h....  damages  and  costs  aforesaid  and  should  make  return 
of  the  said  writ  with  an  endorsement  thereon  in  what  manner 

he  should  have  executed  the  same  within   daj^s 

from  the  date  thereof. 

Plaintiff. .  further  aver.  .  that  at  the  time  said  execution 
was  delivered  by  the  plaintiff.  .  to  the  defendant  as  such  sheriff 

of   county  aforesaid,  said  defendant  had  in  his 

possession  as  such  sheriff  goods  and  chattels  of  the  said  C,  in 
said  writ  of  fieri  facias  or  execution  named  as  defendant,  of 
the  value  of,  to  wit, dollars ;  that  the  said  defend- 
ant, B,  pretended  to  then  and  there  hold  said  goods  and  chat- 

seLaflin   &  Eand  Powder  Co.  v. 
Tearney,  131  111.  322  (1890). 


CASE  667 

tcls  of  the  said  C  under  certain  executions  from  the 

and courts  of county, , 

in  favor  of   ,  as  follows:     (Give  list  of  executions). 

Also   under  and   by  virtue   of  an   attachment  writ   from  the 

court  of   county,  state  of  Illinois,  in 

favor  of and  against  C  for  the  sum  of 

dollars,  all  of  which  said  writs  came  to  the  hands  of  said  sheriff 

on  the day  of ,  19 •  •  ;  but  plaintiff.  . 

aver. .  the  fact  to  be  that  at  the  time  plaintiff. . '  said  writ  of 
fien  facias  was  delivered  to  the  defendant,  the  defendant,  as 
such  sheriff,  held  said  goods  and  chattels  under  and  by  virtue 
of  only  said  attachment  writ  and  by  agreement  between  said 

plaintiff'.  .   in  execution 

and  the  defendant  in  execution,  C,  that  after  receiving  and  levy- 
ing the  same  the  defendant,  as  such  sheriff,  advertise  to  sell 

said  goods  pursuant  to  law  on  the day  of , 

19.  .  ;  that  by  agreement  between  said  plaintiff.  .  and  defendant 
in  said  executions  and  said  sheriff",  said  sale  was  continued  from 

that  date  until  the day  of ,  19 . . ,  the 

same  was  again  continued  by  agreement  as  aforesaid  between 

the  said  parties  until  the   day  of    , 

19. .,  and  that  at  the  time  of  the  delivery  of  plaintiff. .  said  exe- 
cution to  said  defendant  as  such  sheriff',  he  held  the  said  goods 
and  chattels  under  and  by  virtue  of  said  attachment  writ  and 
said  agreement  between  the  plaintiff.  .  and  defendant  in  said 
executions  respectively,  and  not  under  and  by  virtue  of  said 
executions  or  any  or  either  of  them,  and  that  the  same  were 
then  and  there  not  liens  upon  the  property  of  said  defendant  in 
execution,  C,  as  against  the  plaintiff.  . 

Plaintiff.  .  further  aver.  .  that  the  time  .  .he.  .  delivered  said 
execution  to  the  said  defendant  as  such  sheriff",  on,  to  wit,  the 

• . .    day   of    ,    19 . . ,    .  .  he .  .    instructed 

and  directed  the  said  sheriff  to  immediately  levy  the  same  upon 
any  of  the  property  of  the  defendant  in  execution,  C,  to  be 
found  by  him  in  the  said  county  of ,  and  to  imme- 
diately proceed  according  to  law  to  sell  the  same  and  apply 
the  proceeds  towards  the  payment  of   .  .h.  .  said  execution. 

Plaintiff.  .    further  aver. .   that  afterwards,  and  on,  to  wit, 

the   day  of   ,  19 . . ,  the  said   

,  plaintiff.  .  in  said  executions  hereinbefore  men- 
tioned respectively,  then  and  there  agreed  to  and  with  the  said 
defendant  in  execution,  C,  and  the  defendant  herein,  B,  sheriff, 
to  again  postpone  the  sale  of  said  goods  and  chattels  so  held  in 
the  possession  of  the  defendant  as  aforesaid  and  upon  which 
the  said  defendant  had  levied  plaintiff',  .s  writ  of  fieri  facias 

or  execution,  on,  to  wit,  the day  of .^ , 

19..,  without  the  consent  of  the  plaintiff..,  and  the  said  sale 
was  then  and  there  again  postponed  without  the  consent  of  the 

plaintiff. .  and  against  .  .h,  .  protest  until,  to  wit,  the 

day  of  ,  19 . . ,  and  on  said  day  of 


668  ANNOTATED   FOKMS  OF   PLEADING   AND   PRACTICE 

,  19..,  by  agreement  between  tlic  parties  afore- 
said, without  the  consent  and  against  the  protest  of  phiintilT.  ., 

said  sale  was  again  postponed  until  the   day  of 

,  19. .,  and  as  to  a  portion  of  said  goods  so  levied 

upon  as  aforesaid,  until  the day  of , 

19... 

Plaintiff. .  further  aver. .  that,  on,  to  wit,  the 

and days  of ,  19..,  the  said  defend- 
ant as  such  sheriff  sold  the  goods  and  chattels  of  said  defendant 
in  execution,  C,  so  levied  upon  by  him  under  plaintiff,  .s  writ 
of  execution  as  aforesaid,  receiving  therefor  the  sum  of,  to  wit, 
dollars. 

Plaintiff.,  further  aver.,  that  it  thereupon  became  and  wa.^ 
the  duty  of  said  defendant  as  such  sheriff",  to  pay  to  the  plain- 
tiff. .  out  of  the  said  money  so  received  from  the  sale  of  said 
goods  and  chattels  as  aforesaid,  the  amount  of  ..h..  said  writ 
of  fieri  facias  or  execution,  together  with  interest  thereon,  after 
deducting  from  said  proceeds  the  costs  incurred  by  tlie  defend- 
ant as  such  sheriff  in  selling  the  same  and  the  amount  necessary 
for  him  to  hold  and  retain  in  his  possession  on  said  writ  of  at- 
tachment, but  that  the  defendant,  not  regarding  his  duty  in 
that  behalf,  then  and  there  refused  to  pay  to  the  plaintiff.  . 
the  amount  of  ..h.,  said  execution,  interest  and  costs,  or  any 
part  thereof,  and  did  wrongfully  and  falsely  return  said  writ 

of  execution,  on,  to  wit,  the day  of , 

19..,  with  his  endorsement  thereon  that  he  had  applied  said 

moneys  on court  execution  Nos and 

court  execution  No ,  after  deducting  his 

costs,  and  then  being  unable  to  find  any  other  property  of  the 
said  C  in  his  county  on  which  to  levy,  he  therefore  returned  said 
writ  in  favor  of  plaintiff.  .,  "No  part  satisfied,"  the  said  last 

mentioned  executioi.s  from  the and  

courts  of county  being  the  executions  of  the  said 

,  above  mentioned. 

Whereby,  the  plaintiff.  .  aver.  .  an  action  has  accrued  to 
.  .h.  .  to  demand  of  the  defendant  as  damages,  the  amount  of 
.  .h.  .  said  writ  of  fieri  facias  or  execution,  interest  and  costs  as 
and  for  said  false  return  of  the  sheriff'  thereon. 

1296  Fencing  railroad  near  depots 

A  reasonable  space  around  station  and  depots  which  is  ex- 
clusively used  for  public  access  to  the  railroad  is  not  required 
to  be  fenced  by  statute.-''' 

27  Butler  V.  Aurora,  Elgin  &  Chi- 
cago R.  Co.,  250  111.  47,  49  (1911). 


CASE  669 

1297  Fraud  and  deceit,  action 

An  action  on  the  case  is  an  appropriate  remedy  to  recover 
damages  for  fraud  and  deceit  practiced  in  securing  the  execution 
of  a  contract,2  8  as  by  representing  lands  to  be  unincumbered  when 
they  are  incumbered.^^  An  action  on  the  case  in  the  nature  of 
deceit  is  maintainable  against  a  party,  who,  with  a  design  to 
deceive  and  defraud  another,  makes  a  false  representation  of  a 
matter  required  of  him,  by  which  a  party  to  whom  the  repre- 
sentation is  made,  enters  into  a  contract  with  a  third  person,  and 
sustains  an  injury  thereby.^o 

The  fraud  and  the  deceitful  representation  which  may  consti- 
tute the  ground  of  an  action  for  deceit  must  be  concerning  an 
existing  fact  or  facts,  and  must  not  be  a  mere  promise  to  per- 
form an  act,  although  accompanied  at  the  time  with  an  inten- 
tion not  to  perform  it.  Fraudulent  representations  are  action- 
able whether  verbal  or-written.^^  The  elements  of  the  cause  of 
action  for  fraud  and  deceipt  are  representation,  falsity,  scienter, 
deception  and  injury.^^ 

1298  Fraud  and  deceit,  declaration  requisites 

In  an  action  for  fraud  and  deceit,  the  averment  that  the  de- 
fendant knew  that  tlie  representations  were  false  is  essential 
to  the  statement  of  a  good  cause  of  action.  The  fraud  and  the 
scienter  constitute  the  grounds  of  the  action.^s 

1299  Fraud  and  deceit,  collusion  between  defendant  and  real 

estate  agent,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  ,  the  plaintiff  waa 

engaged  in  the  business  of  a  carpenter  in  the  city  of , 

county, ,  and  the  defendant,  D,  was 

then  and  there  a  neighbor  of  the  plaintiff  and  engaged  in  the 

business  of  a  florist  in aforesaid ;  that  from  time 

to  time  during  three  or  four  years  preceding  the  above  men- 
tioned date  plaintiff  had  done  and  performed  work  in  the  line 
of  his  business  for  the  defendant,  D ;  that  in  this  way  and 
through  these  means  the  relationship  betAveen  himself  and  the 
said  defendant,  D,  had  become  familiar  and  friendly;  that  said 
defendant,  D,  had  been  a  resident  of  the  city  of 

5i«  Bates  V.  Bates  Machine  Co.,  230  si  Grubb    v.    Milan,    249   111.   456, 

111.  619,  621   (1907).  463,  464   (1911). 

29  Hahl  V,  Brooks,  213  111.  134,  139  32  Foster  v.  Oberreich,  230  111.  525, 
(1904).  527   n907). 

30  Weatherfoid  v.  Fishhack,  3  ^^  Cantwell  v.  Harding,  249  111. 
Scam.  170,  173   (1841).  354,  357  (1911). 


670  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

for  many  years,  while  he,  the  plaintiff,  had  only  resided  here 

about   years,  having  come  to  this  country  from 

,  and  that  by   reason  of  defendant's  superior 

means,  longer  residence  in  this  country  and  experience  in  the 
business  of  florist,  plaintiff  reposed  in  said  defendant  much 
trust  and  confidence,  particularly  with  respect  to  his  statements 
about  the  business  of  a  florist ;  that  during  this  time  the  defend- 
ant frequently  said  to  the  plaintiff,  that  he,  the  plaintiff,  ought 
to  buy  a  small  piece  of  land  in  the  country  near  the  city  of 

and  engage  in  the  business  of  growing  garden 

truck,  flowers  and  vegetables  for  market ;  that  he,  the  defend- 
ant, on  account  of  his  knowledge  of  the  business,  and  on  account 
of  the  trade  he  has  established,  could  and  would  help  the  plain- 
tiff to  dispose  of  his  produce  in  the  city  of ,  and 

thus  aid   the   plaintiff   in   making   large   monetary   gains   and 

profits ;  that,  on,  to  wit, ,  19 .  . ,  at 

aforesaid,  the  defendant  stated  to  the  plaintiff  that  he,  the  de- 
fendant, knew  a  man  who  had  a  piece  of  land  convenient  to 
the  city  and  just  suited  and  adapted  to  the  needs  of  the  plain- 
tiff, and  good  for  the  business  that  he  urged  the  plaintiff'  to 
undertake,  namely,  the  raising  of  flowers  and  vegetables  for 
market  as  aforesaid ;  and  believing  that  the  defendant  was  solici- 
tous only  for  the  welfare  of  the  plaintiff',  and  that  the  defendant 
was  moved  only  by  desire  to  aid  and  assist  the  plaintiff,  and 
that  defendant  was  acting  in  perfect  good  faith  and  honesty 
with  the  plaintiff,  he,  the  plaintiff,  on,  to  wit,  at  the  time  and 
place  last  aforesaid,  permitted  the  defendant,  at  his  request, 
to  enter  into  negotiations  for  a  piece  of  land  for  the  plaintiff, 
such  as  the  defendant  had  informed  the  plaintiff'  would  be 
best  suited  to  the  plaintiff's  purpose,  as  above  stated,  that  is 
to  say,  suitable  for  the  raising  of  flowers  and  vegetables  for 
market  at  a  profit. 

And  plaintiff  avers  that  soon  thereafter,  in  pursuance  of  the 
permission  given  by  plaintiff  to  defendant,  as  above  stated,  the 

defendant  entered  into  negotiations  with  one  G,  at , 

,  for  the  purchase  from  said  G  of  a  piece  of  land 

for  the  plaintiff,  which  piece  of  land,  the  defendant  informed 
plaintiff,  was  entirely  suited  to  the  plaintiff's  purpose  as  above 
stated,  and  was  very  rich  and  productive  soil;  but  plaintiff 
avers  that  said  statements  were  false  and  known  to  be  so  by 
the  defendant  when  made  to  the  plaintiff.  And  plaintiff  avers 
that  the  defendant  then  and  there  obtained  from  the  said  G  an 

offer  to  sell  said  land  to  the  plaintiff  for  the  sum  of 

($ )  dollars,  but  that  he,  the  defendant,  with  the  purpose 

and  intent  of  cheating  and  defrauding  the  plaintiff  out  of  the 

sum  of dollars,  requested  and  instructed  said  G, 

when  he,  the  plaintiff,  should  call  upon  him,  the  said  G,  with 
reference  to  the  purchase  of  said   land,  to  put  the  price  of 

dollars  thereon,  and  to  name  said  sum  of 

dollars  to  the  plaintiff  as  the  lowest  price  for  which  he,  the  said 


CASE  671 

G,  would  sell  the  same,  with  the  fraudulent  intent  and  purpose, 
that  he,  the  said  D,  might  himself  receive  the  difference  between 
said  sum  of ,  if  such  purchase  should  be  consum- 
mated, and  the  said  sum  of dollars,  for  which  the 

said  G  was  willing  to  sell  said  land,  which  said  G  then  and  there 
agreed  to  do. 

And  plaintiff  avers  that  by  reason  of  the  trust  and  confidence 
reposed  by  him,  the  plaintiff,  in  the  defendant,  as  aforesaid, 
and  by  reason  of  the  relation  existing  between  the  plaintiff'  and 
the  defendant,  and  the  authority  and  permission  so  as  aforesaid 
given  by  him,  the  plaintiff,  to  the  defendant,  to  negotiate  in 
relation  to  the  purchase  of  said  land,  it  then  and  there  became 
and  was  the  duty  of  the  defendant  to  act  in  the  premises  in 
perfect  good  faith  and  honesty  with  him,  the  plaintiff,  and  if 
it  was  the  desire  of  the  defendant  to  make  any  profit  or  com- 
mission or  to  receive  any  compensation  for  negotiating  in  ref- 
erence to  the  purchase  of  said  land  for  him,  the  plaintiff,  that 
it  was  the  duty  of  the  said  defendant,  D,  to  state  to  the  plain- 
tiff what  compensation,  if  any,  he  wished  to  receive. 

And  plaintiff  avers  that  after  obtaining  said  offer  from  said 

G  to  sell  said  land  for dollars,  as  aforesaid,  the 

defendant  falsely  and  fraudulently  and  with  the  purpose  and 
design  of  injuring,  defrauding  and  deceiving  the  plaintiff'  and 

cheating  him  out  of  the  said  sum  of dollars,  on, 

to  wit,  the    day  of    ,   19 .  . ,   at  the 

county  aforesaid,  represented  to  the  plaintiff  that  he  had  re- 
ceived from  said  G  an  offer  to  sell  said  land  for 

dollars,  and  that  said  sum  was  the  least  for  which  the  said  G 
would  sell  the  land;  which  representations  were  then  and  there 
false,  fraudulent  and  untrue  and  known  by  the  defendant  at 
the  time  when  made  to  be  false,  fraudulent  and  untrue;  and 
were  made  by  the  defendant  with  the  intent  of  having  the  plain- 
tiff act  thereon,  and  for  the  purpose  of  cheating,  injuring  and 
defrauding  the  plaintiff  as  aforesaid. 

And  plaintiff  avers  that  afterwards  and  some  time  between 

the  said  day  of ,  19 .  . ,  he,  the 

plaintiff,  went  upon  said  land  and  called  upon  said  G  at  his 

residence  at , county, , 

who  confirmed  the  statements  and  representations  of  said  de- 
fendant, D,  as  to  the  price  for  which  he,  the  said  G,  was  willing 
to  sell  said  land;   and  that  afterwards,  and  on,  to  wit,  the 

day  of ,  19 .  . ,  plaintiff  met  said  G 

at  the  house  of  the  said  defendant,  D,  and  at  the  request  of 
said  defendant,  and  while  still  believing  the  defendant's  state- 
ments and  representations  concerning  the  quality  and  desira- 
bility of  said  land  and  the  price  therefor  all  to  be  true  and  to  be 
made  in  honesty  and  good  faith  by  the  defendant,  and  in  reliance 
therein,  he,  the  plaintiff,  gave  to  said  defendant  the  sum  of 

•  • ($ )    dollars  to  apply  upon  the  purchase 

price  of  said  land;  and  the  plaintiff,  together  with  his  wife,  L, 


672  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

then  and  there  took  a  conveyance  of  said  land  from  said  G 

and  S,  his  wife ;  and  afterwards,  to  wit,    ,  19.  ., 

plaintiff  executed  and  delivered  to  the  defendant,  D,  his  promis- 
sory note  for   ($ )   dollars,  payable  to  the 

order  of  said  D  on  or  before  one  year  after  its  date,  and  secured 
the  same  by  chattel  mortgage  to  said  defendant,  D,  on  the  plain- 
tiff's horse  and  wagon,  under  which  chattel  mortgage  the  plain- 
tift"s  horse  and  wagon  was  afterwards,  and  before  the  com- 
mencement of  this  suit,  sold  by  the  defendant ;  and  afterwards 
and,  on,  to  wit,  ,  19. .,  plaintiff"  paid  to  the  de- 
fendant, D,  the  further  sum  of ($ )  dollars 

in  cash. 

And  the  plaintiff  avers  that  the  defendant  then  and  there,  to 
wit,  at  the  time  and  place  last  aforesaid,  represented  and  stated 
to  him,  the  plaintiff',  that  all  said  last  mentioned  sums,  namely, 

said ($ )  dollars  cash,  the  amount  of  said 

note,    ($ )    dollars,  and  said    

($ )  dollars  cash,  had  been  advanced  by  the  said  defend- 
ant to  said  G  on  account  of  the  purchase  price  of  said  land, 
which  plaintiff  avers  it  was  then  and  there  the  duty  of  defend- 
ant to  have  done,  and  so  to  do,  Miiich  said  statements  made 
by  the  defendant  were  false  and  known  by  him  at  the  time  to 

be  false;  and  the  plaintiff'  avers  that  said  sum  of 

($ )  dollars  was  retained  by  the  defendant,  and  has  ever 

since  been  retained  by  the  defendant  for  his  own  use  and  benefit, 
and  the  plaintiff  has  thereby  been  ])y  the  defendant  wrongfully, 
wickedly  and  deceitfully  cheated  and  defrauded  out  of  said  sum. 

And  the  plaintiff  further  avers  that  by  notes  and  mortgages 
executed  and  delivered  by  himself  and  his  wife,  L,  to  the  said 

G,  on,  to  wit,  the  said day  of ,  19 .  . , 

he,  the  plaintiff,  bound  and  obligated  himself  to  pay  an  addi- 
tional       dollars  for  said  land,  which  said  land  is 

described  as  follows,  to  wit  (Insert  description).  And  the  plain- 
tiff further  avers  that  a  suit  was  instituted  in  the 

court  of  county,   some  time  in  the 

month  of  ,  19..,  by  said  G  against  the  plaintiff 

and  his  said  wife,  L,  to  foreclose  said  mortgage  and  to  enforce 

a  vendor 's  lien  on  said  premises  for  the  said  sum  of 

dollars,  so  retained  by  the  defendant,  D,  as  aforesaid,  in  which 

suit  a  decree  was  entered  on,  to  wit,  the  day  of 

,   19..,   foreclosing  said  mortgage  and  enforcing 

said  vendor's  lien  in  favor  of  said  G  on  said  premises. 

And  plaintiff  avers  that  he  has  been  compelled  to  lay  out 
and  has  laid  out  and  expended  a  large  sum  of  money,  to  wit, 
the  sum  of  ($ )  dollars  in  and  about  de- 
fending said  suit,  and  has  lost  much  time,  to  wit,  time  of  the 

value  of  ($ )   dollars  in  the  premises,  and 

in  moving  his  family  and  belongings  unto  said  land  and  in 
removing  them  therefrom ;  and  the  plaintiff  avers  that  he  is 
a  poor  man  without  pecuniary  means,  and  without  sufficient 


CASE  673 

means  to  further  prosecute  or  defend  said  suit  or  to  redeem 
said  premises  from  the  sale  had  under  said  decree,  and  he,  the 
plaintiff,  has  virtually  lost  all  his  right,  title  and  interest  in 
and  to   said   premises;    and   the   plaintiff   avers   that   he   was 

induced  to  pay  said  sum  of ($ )  dollars  to 

give  said  chattel  mortgage  and  to  make  said  notes  and  mortgage, 
and  has  been  compelled  to  expend  said  sums  and  has  lost  his 
said  time  by  the  fraud  and  deception  practiced  on  him  by  the 
defendant  as  aforesaid. 

Wherefore,   plaintiff'  says  that  the  defendant  deceived  and 
defrauded  plaintiff  to  the  damage,  etc, 

1300  Fraud  and  deceit;  incumbrance,  non-resident,  Narr.  (111.) 

For  that  whereas,  the  plaintiff,  on,  to  wit,  the 

day  of ,  19. .,  entered  into  negotiations  with  the 

defendants  at  their  request  to  purchase  of  them  a  large  tract 

of  land,  to  \\dt,   acres  lying  in county, 

,   for  a  certain  consideration  to  be  paid  by  the 

plaintiff  to  the  defendants,  to  wit, dollars,  that  is 

to  say,  that  the  plaintiff'  should  turn  over  to  said  defendants 

(Describe  property)  belonging  to  him  valued  at 

dollars  and  execute  a  mortgage  on  the  (Describe  property)  for 
the  balance  of  the  purchase  money,  to  wit,  dol- 
lars, and  for  the  purpose  of  inducing  the  plaintiff  to  purchase 
said  land  for  said  consideration  and  close  the  trade  in  said  man- 
ner, said  defendants  then  and  there  fraudulently,  falsely  and 
knowingly  represented  to  him  that  they  owned  said  land  in 
fee  simple  and  that  their  title  thereto  was  free  and  unincum- 
bered with  liens  of  any  character.    And  the  plaintiff  avers  that 

said  negotiations  were  carried  on  in  said  state  of , 

while  this  plaintiff  was  temporarily  in  said  state,  he  being  a 

citizen  and  resident  of  the  state  of   ,  which  was 

well  known  to  the  defendants,  and  that  he  was  unfamiliar  with 

the  title  to  real  estate  in  said  state  of  ,  and  had 

no  extensive  acquaintance  with  persons  in  said  state  of 

and  before  agreeing  to  take  said  land  at  said  price  and  before 
agreeing  to  close  the  trade  in  the  manner  aforesaid,  then  and 
there  informed  said  defendants  that  he  w^ould  not  take  said 
land  or  close  the  trade  until  said  defendants  furnished  him 
with  an  abstract  of  title  thereof,  which  was  to  be  examined  by 
some  reliable  attorney  to  be  procured  by  said  defendants,  said 
attorney  to  give  his  opinion  thereon.  And  the  plaintiff  avers 
that  said  defendants  thereupon  then  and  there  introduced  the 

plaintiff  to  one of  said county,  and 

recommended  said  to  him,  the  plaintiff,  as  a  re- 
liable and  competent  attorney,  who  had  examined  the  abstract 
of  title,  and  the  defendants  and  said  attorney,  although  know- 
ing that  said  land  was  incumbered  with  liens  to  the  extent  of, 
to  wit, dollars,  and  that  said  abstract  showed  said 


674  ANNOTATED  FORMS  OP   PLEADING   AND   PRACTICE 

liens,  nevertheless  said  attorney  falsely  stated  to  the  plaintiff 
as  his  opinion  of  said  title  that  said  abstract  showed  good  and 
valid  title  in  fee  simple  in  said  land  in  them,  the  defendants, 
and  that  it  also  showed  that  the  same  was  free  from  and  unen- 
cumbered with  liens  of  any  character,  whereas,  in  truth  and 
in  fact,  said  land  as  shown  by  said  abstract  of  title  was  incum- 
bered as  aforesaid.  The  plaintiff  avers  that  by  means  of  such 
false  and  fraudulent  representations  of  the  said  defendants  and 
said  attorney  and  confiding  and  relying  upon  the  same,  he  was 
induced  to  and  did  purchase  said  land  and  close  the  trade  there- 
for, turning  over  to  the  defendants  said  (Describe  property) 
at  said  agreed  value,  and  did  execute  and  deliver  to  the  defend- 
ants a  mortgage  on  the  (Describe  property)  for 

dollars  upon  the  execution  and  delivery  of  a  deed  for  said 

acres  to  him.     By  means  whereof  the  defendants 

falsely  and  fraudulently  deceived  the  plaintiff  in  the  purchase 

of  said  tract  of  land.    To  the  damage  of  the  plaintiff  of 

dollars;  and  therefore,  he  brings  suit. 

1301  Fraud  and  deceit;  infringement  of  patent,  Narr.  (111.) 

For  that  whereas  the  plaintiffs  were,  and  prior  to,  on,  to  wit, 

the   day  of   ,  1 . . . ,  engaged  in  the 

manufacture  and  sale  of  a  certain  device  known  as  the 

dryer,  which  was  used  for  the  purpose  of  drying  brick  and 

tile ;  and  whereas  the  defendant,  the    company, 

a  corporation,  was  engaged  in  the  manufacture  and  sale  of  a 
device  used  for  the  purpose  of  drying  brick  and  tile,  in  many 
respects  similar  to  the  device  manufactured  and  sold  by  the 

plaintiffs ;  and  whereas  the  said    was  president 

and  the  said was  secretary  of  the  said 

company,  a  corporation,  and  were  both  stockholders  in  the  same. 

And  whereas  the  plaintiffs  and  the   company 

both  had  their  headquarters  in  the  city  of  ,  and 

were  both  competitors  in  the  sale  of  their  respective  devices, 

the    plaintiffs    allege    that    the    said    company, 

through  its  said  president  and  secretary,  for  the  purpose  of 

increasing  the  sale  of  the  said company 's  device, 

and  of  injuring  the  sale  of  the  plaintiff's  device,  wrongfully, 

fraudulently  and  falsely  represented  and  stated  to  the 

company  and  divers  other  corporations  and  persons  who  were 
then  and  there  negotiating  with  the  plaintiffs  for  the  purchase 
by  each  of  them  of  one  of  the  plaintiff's  said  devices,  that  the 
plaintiff's  device  was  an  infringement  upon  the  patents  which 

they  allege  the    company  had  from  the  United 

States  government  covering  said  device  of  the    

company,  and  that  if  they,  the company,  and  the 

said  divers  other  corporations  and  persons  or  any  of  them 
should  purchase  and  use  the  plaintiff's  said  device,  that  the 
company  would  sue  the  said  purchaser  or  pur- 


CASE  675 

chasers  for  infringement  upon  the  said  alleged  patents  of  the 
company. 

And  the  plaintiffs  further  allege  that  the  said  

company,  and  the  said and ,  to  more 

effectively  attain  their  said  object,  to  increase  the  sale  of  their 
own  device  and  injure  the  sale  of  the  defendants,  then  and 
there  wrongfully  and  without  just  cause,  commenced  a  suit  in 

the  United  States  court  in  and  for  the   district 

of    against   the    ,   alleging 

that  the  said  company  was  infringing  upon  the 

said  alleged  patents  of  the company,  in  using  a 

certain  dryer  which  the  company  had  purchased 

from  the  plaintiffs. 

And  the  plaintiffs  further  allege  that  the  said  device,  manu- 
factured and  sold  by  them  for  the  purpose  of  drying  brick  and 
tile,  was  not  an  infringement  upon  any  patent  or  patents  granted 
by  the  United  States  government  covering  the  device  manufac- 
tured and  sold  by  the company,  and  the  plaintiffs 

allege  that  the  said  false  and  fraudulent  statements  made  by  the 

said  officers  of  the  said    in  its  behalf  and 

the  commencement  of  said  suit  materially  contributed  towards 

causing  the  said   company  and  the  divers  other 

corporations  and  persons  aforesaid  to  refuse  to  purchase  the 
plaintiffs'  device,  and  they  did  so  refuse;  and  the  plaintiffs 
further  allege,  that  the  defendants  gave  the  said  false  and 
fraudulent  statements  general  circulation  and  publicity,  and 
that  as  a  result  thereof  purchasers  generally  refused  to  pur- 
chase plaintiffs'  device,  and  the  plaintiffs  allege  that  by  reason 
thereof  they  have  been  deprived  of  great  gains  and  profits  that 
they  would  have  derived  and  made  from  the  sale  of  the  said 
device  to  the  said  persons  and  corporations  aforesaid  and  to 
purchasers-  generally ;  and  that  by  reason  of  the  said  false  and 
fraudulent  statements  their  business  has  been  greatly  damaged 

and  injured,  to  the  damage  of  the  plaintiffs  of   

dollars.    Wherefore  they  bring  their  suit,  etc. 

1302  Fraud   and  deceit;   insurance  policy,   surrender,   Narr. 
(111.) 

For  that  whereas,  on,  to  wit,    ,  19, . ,  one 

made  application  in  the  county  aforesaid  to  the 

of   ,  one  of  the  defendants  herein, 

to  insure  his  life  in  the  sum  of  dollars,  for  the 

benefit  of  the  plaintiff  herein,  who  was  then  the  wife  of  the 

said ;  and  the  said ,  in  consideration 

thereof  complied  with  all  of  the  terms  and  requiremnets  imposed 
or  asked  by  said  defendant  as  conditions  precedent  to  the  issu- 
ance of  said  policy,  and  paid  to  it  the  first  annual  premium 
thereon  required  by  said  defendant,  which  payment  was  accepted 
and  retained  by  said  defendant;  and  in  consideration  thereof 


676  ANNOTATED   FORMS  OF    PLEADING   AND   PRACTICE 

the  said  defendant  at  the  time  and  place  last  aforesaid,  made 

out,  in  the  usual  form  and  delivered  to  him,  the  said , 

the  said  policy  of  insurance,  the  amount  thereof  by  the  terms 
of  said  policy  being  made  payable  upon  the  death  of  said  insured, 
to  his  wife,  the  plaintiff  herein,  as  aforesaid,  which  policy  the 

said   tlien  and  there  accepted  from  said  dt-fend- 

ant  and  at  once  delivered  it  to  the  plaintiff  who  kept  and 
retained  it  until  as  hereinafter  stated. 

And  plaintiff  avers  that  afterwards  and  on,  to  wit, 

the  said   who  is,  and  for  many  years  last  past, 

has  been  an  agent  of  the  s<nd   of  , 

and  at  its  instigation  and  under  its  direction  represented  to  said 

plaintiff  that  he  wouUl  loan  licr  the  sum  of doUars 

on  condition  tliat  slie  woukl  let  liim  hold  said  policy  of  insurance 
as  security  for  said  loan;  and  plaintitf  avers  that  in  considera- 
tion thereof  she  accepted   from  the  said    ,  said 

sum  of   dollars  and  delivered  to  him  said  policy 

of  insurance  to  hold  as  security  as  aforesaid;  and  plaintiff  avers 

that  as  soon  as  said   procured  said  policy,  he,  in 

collusion  with  the  said    of   ,  fraud- 

ently  and  with  the  sole  purpose  of  cheating  and  defrauding  the 
plaintiff  out  of  said  policy  and  the   benelit  thereof,  returned 

the  said  policy  to  the  said    of    who 

has  ever  since  retained  the  same  and  now  claims  to  own  it. 

And  plaintiff  avers  that  on,  to  wit, ,  the  said 

died   in    ,    ,   and   that 

plaintiff  before  the  commencement  of  this  suit  made  several 
demands  upon  each  of  said  defendants  for  said  policy  and  for 
the  amount  due  her  upon  the  same  and  that  said  tlefendants 
have  each  refused  to  surrender  or  deliver  up  said  policy,  or 
to  pay  her  any  part  of  the  amount  due  her  upon  the  same, 

and  that  she,  plaintiff,  after  the  death  of  the  said 

and  before  this  suit  was  begun,  tendered  to  the  said 

the  sum  of dollars  in  legal  tender  money  of  the 

United  States  with  legal  interest  thereon  from  the  time  he  loaned 
her  said  money  as  aforesaid,  on  condition  that  he  would  sur- 
render to  her  said  policy,  which  said  has  neg- 
lected and  refused  to  do. 

And  plaintiff  avers  that  said  policy  upon  the  death  of  the 

said was  and  still  is  of  the  value  of 

dollars  and  that  she  has  frequently  demanded  that  sum  of  the 
defendants  which  they  have  and  each  of  them  has  refused  to 

pay,  in  consequence  whereof  she  is  damaged  in  the  sum  of 

dollars;  wherefore,  etc.     (Add  count  in  trover). 

1303  Fraud  and  deceit;  notes  secured  by  bogus  trust  deed  on 
leasehold,  Narr.  (111.) 

For  that  whereas,  on  the day  of , 

the  defendant,  D,  was  the  owmer  of  a  certain  leasehold  interest. 


CASE  677 

together  with  a  certain  building  thereon,  upon  the  following 

described   real   estate,   situated   in   the   city   of    , 

county  of ,  and  state  of  Illinois,  to  wit,  (Describe 

real  estate)   in  said  city;  that  the  ground  rent  to  the  amount 

of  about  ($ )  dollars  was  past  due  on  said 

leasehold,  and  the  owTier  of  the  fee  was  threatening  to  forfeit 
the  same,  and  that  said  D  then  and  there  knew  that  his  interest 
in  said  real  estate  was  worthless,  and  being  a  man  of  large 
wealth  and  thoroughly  acquainted  with  real  estate  values  in 

,  and  a  cunning  schemer,  and  well  knowing  that 

the  general  public  had  little  knowledge  of  leasehold  values,  he 
conceived  the  scheme  of  conveying  his  interest  in  said  real  estate 

for  the  fictitious  sum  of  dollars  and  having  the 

vendee  execute  a  trust  deed  to  the    company,  a 

corporation  and  a  public  trustee,  doing  a  large,  reputable  and 

responsible  trust  business  in  said  city  of ,  to  secure 

the  payment  of  certain  notes,  aggregating  the  sum  of 

(lollai-s;  and  thereby  representing  through  the  public  records 
and  abstracts  of  title  to  the  public  that  said  property  had  been 

sold  for  tiie  sum  of dollars,  and  was  therefore  worth 

that  sum,  and  thereby  impress  upon  the  public  that  one  quarter 
of  said  purchase  money  had  been  paid,  when  in  truth  and  in 
fact  the  said  I)  had  no  idea  that  said  leasehold  interest  in  said 
real  estate  could  be  sold  to  any  person  knowing  the  facts  for 
any  sum. 

That  said  defendant  D,  for  the  purpose  of  cheating  and 
defrauding  said  plaintiff  and  others,  conspired  with  one  M,  a 
l)rother-in-law^  of  said  defendant  D,  and  the  said  defendant  C  M, 

whereby,  on    ,   1 .... ,  the  said   defendant   D   and 

his  wife  conveyed  said  leasehold  interest  to  said  M  without  any 

consideration  therefor,  and  that  on,  to  wit,  the    

day  of ,  1 .... ,  the  said  ]\I  conveyed  his  interest  in 

said  real  estate  to  the  defendant,  C  M,  who  was  a  man  of  no 
financial  means  or  responsibility,  the  said  M  and  the  said  defend- 
ant C  iM,  being  mere  tools  in  the  hands  of  said  defendant  D. 

That  the  consideration  as  stated  in  said  deed  from  M  to  said 

C  'M  was  the  sum  of dollars,  but  that  in  truth  and  in  fact 

there  was  no  consideration  whatever  for  said  deed ;  that  on 
said  last  mentioned  date,  and  as  a  part  of  the  same  transaction, 
and  for  the  purpose  of  cheating  and  defrauding  said  plaintiff 
and  others,  the  said  defendant  D  had  the  said  defendant  C  M 

execute  to  the  said company  a  trust  deed  on  his 

interest  in  the  said  leasehold  securing  the  payment  of 

notes  for  the  sum  of dollars  each  ;  ten  notes  for  the  sum 

of dollars  each,  all  due  in  one  year  after  date ;  and 

sixty-two  notes  for  the  sum  of dollars  each,  all  due  in 

fifteen  months  after  date ;  all  of  which  said  notes  were  executed 
by  the  said  defendant  C  M  payable  to  his  owm.  order  and  by  him 
endorsed,  and  were  then  and  there,  in  pursuance  of  said  design 


678  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

to  cheat  and  defraud  said  plaintiff  and  others,  turned  over  to 
said  defendant  D. 

That  said  defendant  D,  for  the  purpose  of  carrying  out  his 
said  scheme  and  design  to  cheat  and  defraud  this  plaintiff  and 
others,  caused  the  said  deed  so  executed  by  himself,  the  said 
D,  and  his  wife  to  the  said  M  to  be  filed  for  record  in  the 
recorder's  office  of  said county,  and  for  the  fur- 
ther purpose  of  defrauding  said  plaintiff  and  others  caused  said 
deed  from  said  M  to  said  defendant  C  M  to  be  filed  for  record 

in  the  recorder's  office  of  said   county,  and  also 

the  trust  deed  from  said  C  M  to  the  said company ; 

and  that  said  defendant  D  caused  the  said com- 
pany to  be  named  as  trustee  in  said  trust  deed  and  in  said  notes 
for  the  purpose  of  committing  a  fraud  upon  the  plaintiff  and 
other  parties,  who  might  afterwards,  in  investigating  the  value 
of  said  notes  and  said  security,  believe  that  the  transactions  rep- 
resented by  said  deeds  and  notes  were  bona  fide  transactions, 
when  in  truth  and  in  fact  said  property  was  never  sold  to  said 
M  nor  to  said  defendant  C  M  for  any  sum. 

That  said   defendant   D   caused  said  trust   deed   from  said 

defendant  C  M  to  the  said  company  to  be  made 

in  such  a  manner  that  it  should  appear  to  be  given  upon  the 

said  entire  premises  known  as street  in  said  city 

of ,  as  security  for  an  indebtedness  of 

dollars,  when  in  truth  and  in  fact  the  only  interest  the  said 
defendant  D,  or  the  said  M,  or  the  said  defendant  C  M  had  in 
said  premises  was  a  leasehold  interest  which  the  said  defendant 
D  then  well  knew  to  be  of  no  value,  and  entirely  worthless. 

That  afterwards  said  defendant  D  took  possession  of  said  notes 
and  obtained  an  abstract  showing  the  title  to  said  property 
including  the  trust  deed  securing  said  notes,  and  well  knowing 
that  said  notes  had  no  security,  and  that  said  M  was  utterly 
worthless  financially  and  that  said  defendant  C  M  was  utterly 
W'Orthless  financially,   said  defendant  D   placed   said  notes   on 

the  market  in  the  city  of for  sale ;  and  also  offered 

said  notes  in  exchange  for  other  property. 

And  the  plaintiff  avers  that  subsequently  he  was  desirous  of 

exchanging   acres  of  land  for  some  good  real  estate 

securities,  and  that  for  the  purpose  of  so  doing  he  applied  to 

the  said  defendant  D  in  said  city  of to  secure  an 

exchange  of  the  said   acres  of  land,  of  the  value  of, 

to  wit, dollars,  for  some  good  real  estate  securities,  and 

that  he  was  thereupon  shown  two  of  said dollars 

notes  which  showed  that  the  said  notes  were  secured  by  trust 

deed  to  companj'-,  on   building  No. 

street,  in  said  city  of . , 

,  and  which  showed  that  the  title  to  said    

street  was  insured  by  said company  by  its  policy 

of  title  insurance,  the  said   company  being  then 

also  engaged  in  doing  a  large,  reputable  and  responsible  busi- 


CASE  679 

ness  insuring  against  defects  in  land  titles;  and  this  plaintiff 
avers  that  he  was  conducted  by  said  defendant  D  to  a  place 
within  sight  of,  and  in  close  proximity  to  said  premises  located 

at  said  street  in  said  city  of  ;  and 

that  the  said  defendant  D  then  and  there  exhibited  to  plaintiff 
the  said  premises,  and  then  and  there  falsely  and  fraudulently 
stated  and  represented  that  the  said  notes  were  secured  by  trust 
deed  on  the  said  premises,  and  with  the  intent  and  design  to 
deceive  and  mislead  this  plaintiff  into  the  belief  that  the  said 
notes  were  secured  by  trust  deed  upon  the  fee  in  said  premises. 
That  the  said  defendant  D  with  a  design  to  cheat  and  defraud 
this  plaintiff  falsely  and  fraudulently  stated  to  plaintiff  that 
the  notes  hereinbefore  described  were  gilt-edged  and  that  the 

property  at street,  securing  said  notes,  was  worth 

at  least  twice  as  much  as  the  incumbrance  on  it,  which  was  the 

trust  deed  securing  these dollars  notes,  and  that 

a  loan  of dollars  had  been  made  on  said  property 

at    street ;  thereby  intentionally  and  designedly 

deceiving  and  misleading  this  plaintiff  into  the  belief  that  said 
notes  were  secured  by  a  trust  deed  upon  the  fee  in  said  prem- 
ises at street,  and  that  said  fee  was  valued  at  far 

more  than  the  amount  of  the  notes  named  in  the  trust  deed,  and 
was  ample  security  for  the  payment  of  the  notes. 

That  said  defendant  D,  with  a  further  design  and  intent  to 
cheat  and  defraud  this  plaintiff,  then  conducted  this  plaintiff 
to  one  B,  who,  at  the  prior  instigation  of,  and  then  in  the  pres- 
ence of,  and  on  behalf  of  the  said  defendant  D,  falsely  and 
fraudulently  stated  and  said  that  others  of  the  said  notes  so 
secured  by  the  said  trust  deed  had  been  purchased  by  eastern 
capitalists,  who  had  investigated  the  matter,  for  eighty-five  per 
cent  of  their  face,  which  said  statements  were  false  and  untrue, 
and  were  then  and  there  known  by  the  said  defendant  D  and 
by  the  said  B  to  be  false  and  untrue;  and  plaintiff  avers  that 
said  false  statements  and  the  said  misrepresentations  were 
planned  by  the  said  defendant  D  and  were  made  with  the  inten- 
tion of  defrauding  and  swindling  plaintiff  out  of  his  said 
property. 

And  that  said  defendant  D  represented  that  the 

company  was  the  trustee  named  in  the  trust  deed  for  

dollars,  and  that  plaintiff  then  and  there  inferred  and 

believed  that  the  amount  stated  in  said  trust  deed  was  correct; 
and  plaintiff  avers  that  by  means  of  the  premises  he  was  thereby 
made  to  believe  that  the  trust  deed  was  upon  the  said  premises 

located  at  number street,  in  the  said  city 

of ;  and  that  it  was  ample  security  to  the  trustee 

or  any  party  owning  said  notes  or  any  of  them  as  aforesaid. 

And  the  plaintiff  avers  that  the  two    dollars 

notes  aforesaid  were  drawn  by  the  defendant  D,  or  under  his 
direction,  and  were  caused  by  the  said  D  to  be  printed  in  part ; 
and  the company  named  as  trustee  in  said  notes,  and 


680  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

the  name  " company,   , "  printed  across 

the  end  of  said  notes;  and  the  date,  to  wit,  " ," 

printed  upon  the  said  notes;  and  the  endorsement  in  handwrit- 
ing upon  the  back  of  said  notes,  to  wit,  "This  is  one  of  the 

notes  referred  to  in  our  policy  of  title  insurance  No. 

,    company,  by    ,  secretary," 

and  in  order  to  impress  this  said  phiintiff  and  others  tliat  the 
said  notes  were  of  great  value,  and  that  tiie  transaction  was  a 
legitimate  one;  which  said  notes  so  sul)mitted  to,  and  which 
were  afterwards  delivered  to  this  plaint itf,  are  in  words  and 
figures  following,  to  wit:  (Insert  notes  and  endorsements)  and 
plaintiff  avers  that  the  said  endoreenients  mentioned  last  above, 
purporting  to  be  of  interest  paid,  were  inadvertently  made,  and 
that  in  truth  and  in  fact  no  payment  of  any  interest  on  said 
note  was  ever  made  by  any  person. 

And  plaintiff  avers  that  relying  on  the  truth  of  the  state- 
ments, said  representations  contained  on  the  face  of  said  notes 
and  on  the  back  of  said  notes;  and  upon  the  statements  and 
representations   made  to  this  plaintiff  by   the  said   defendant 

D,  and  by  the  said  B,  he  did,  on,  to  wit, ,  1 .  . . ., 

execute  a  deed  for  the  said acres  of  land,  of  the 

value  of,  to  wit, dollars,  conveying  the  said  land 

to,  to  wit,  the  said  D,  and  received  for  the  said  deed  the  said 
dollars  notes  hereinbefore  mentioned. 

And  plaintiff  avers  that  he  resides  at  ,   

,  and  that  afterwards,  on,  to  wit,   ,  1 .... , 

he  was  informed,  and  has  long  since  learned  tliat  it  was  the 
truth,  that  the  pretended  sale  by  said  defendant  D  to  said  M 
and  to  said  defendant  C  i\I  was  a  bogus  trans<iction,  and  that 
the  said  trust  deed  to  the  said company  was  with- 
out consideration,  and  that  the  entire  transaction  from  the  draft- 
ing and  having  printed  said  notes  to  the  recording  of  the  trust 
deed,  and  to  the  said  false  representations  of  the  said  defend- 
ant D,  and  of  the  said  B,  was  a  scheme  to  cheat  and  defraud 
the  plaintiff,  and  done  for  the  purpose  of  placing  upon  the  mar- 
ket notes  that  were  fraudulent  and  of  no  value  whatever,  and 
that  the  said  notes  so  received  by  this  plaintiff  were  and  are 
worthless;  that  the  property  involved  was  and  is  worthless, 
and  that  the  leasehold  interest  of  said  defendant  D  was  and  is 
worthless.    To  the  damage,  etc. 

1304  Fraud  and  deceit;  oil  stock,  Narr.  (W.  Va.) 

For  this,  that  heretofore,  to  wit,  on  the day  of 

,  19.  .,  at  the  county  aforesaid,  the  plaintiff,  rely- 
ing upon  the  representations  and  statements,  hereinafter  set  out, 
made  to  him  by  said  defendants,  bargained  with  the  said  defend- 
ants and  at  their  request,  to  buy,  and  did  buy  of  them  certain 
oil  stock  in  a  corporation  to  be  immediately  organized  and  to 
be  known  as  the  S  company,  at  a  certain  price,  to  wit,  the  sum 


CASE  681 

of dollars ;  and  these  defendants  did  knowingly 

and  wilfully,  then  and  there,  falsely  and  fraudulently  represent 
the  said  stock  and  the  facts  connected  therewith  in  this,  to  wit, 
that  the  said  S  company  should  be  a  corporation  of  an  author- 
ized capital  of  $. . . .,  divided  into  ....  (....)  shares  of  $. . . . 
each ;  that  there  would  be  no  hold  out  or  promoters'  stock ;  that 
this  plaintiff  was  getting  his  stock  on  the  same  basis  and  footing, 
manner  and  cost  that  the  said  defendants  were ;  that  they,  the 
said  defendants,  were  paying  for,  and  putting  up  their  money 
for  all  stock  they  would  have,  the  same  as  the  plaintiff;  that 
the  said  leases  owned  by  and  upon  which  the  said  company 

should  operate  were  about acres  in county, 

"West  Virginia ;  that  said  leases  had  been  secured  by  said  de- 
fendants only  a  few  days  prior  thereto  direct  from  the  owners 
of  the  land ;  that  the  P  company  had  said  land  leased,  and  the 
said  P  company  by  an  oversight  had  allowed  the  rental  to  go 
over  one  day,  and  that  said  defendants  had  arrangements  made 
with  the  said  owners,  that  if  the  P  company  did  not  pay  the  rent 
on  the  day  it  was  due  that  the  said  defendants  should  have  a 
lease  on  the  lands  if  they  would  put  down  a  well  at  once,  which 
arrangements  were  made  and  the  said  leases  then  secured  direct 
from  the  owners  of  the  land ;  that  said  land  lay  in  a  solid  body ; 
that  said  leases  were  surrounded  in  close  proximity  on  three 

sides  by  some producing  oil  wells ;  that  some  of  said  wells 

were  within  ....  feet  of  the  line  of  these  said  leases ;  that  the 
wells  that  had  come  in  there  had  been  very  large,  starting  off 

with  a  production  of  from   to   barrels  per  day ; 

said  defendants  then  and  there  sold  said  stock  to  the  plaintiff, 
said  plaintiff  relying  fully  upon  the  said  statements  made  by 

said  defendants,  for  the  said  sum  of  $ ,  which  has  been 

fully  paid  to  said  defendants  as  directed  by  them;  whereas,  in 
truth  and  in  fact,  the  charter  for  said  S  company  had,  at  the 
time  of  making  said  false  statements  as  to  amount  of  capital 

stock  and  value  of  shares,  been  issued  on  the day  of 

,  19-  •,  "vvith  said  defendants  as  incorporators,  and 

with  an  authorized  capital  of  $ and  divided  into 

shares  of  $ each ;  that  afterwards  upon  the  organization 

of  said  corporation,  $ of  said  stock  was  held  out  or  taken 

from  said  corporation  as  promotion  stock  and  divided  among 
said  defendants;  that  a  %  part  of  all  oil  produced  from  said 
leases  was  over  and  above  the  l^  part  going  to  the  landowner, 
set  over,  without  consideration,  to  one  of  the  promoters  of  said 
corporation,  and  likewise  divided  with  said  defendants;  that 
said  defendants  put  up  no  money  whatever  for  their  said  stock ; 
that  said  defendants  did  not  secure  the  said  leases  direct  from 
the  landowners;  that  the  P  company  did  not  have  these  said 
lands  leased  at  that  time,  nor  did  they  suffer  rentals  to  go  un- 
paid on  them  as  represented;  that  there  were  not  producing  oil 
wells  on  three  sides  of  this  said  property  in  close  proximity; 
that  there  were  no  oil  wells  within  ....  feet  of  the  line  of  said 


682  ANNOTATED   FORMS  OF   PLEADING    AND   PRACTICE 

leases ;  that  no  wells  of  any  such  production  qs  represented  by 
said  defendants  ever  came  in  tliat  field  and  in  close  proximity 
to  these  said  leases;  and  tlie  plaintiff  says  tiiat  said  defendants, 
by  means  of  these  premises  on  the  day  aforesaid,  did  knowingly 
and  wilfully,  falsely  and  fraudulently  deceive  the  plaintitf  on 
the  sale  of  said  stock  as  aforesaid ;  and  that  said  stock  thereby 
is  worthless  and  that  upon  the  day  aforesaid  had  no  value  to 
this  plaintiff  and  that  the  plaintiff  has  suffered  great  damage 
by  reason  of  the  money  paid  out,  and  the  loss  of  the  use  and  in- 
terest of  said  money  and  that  he  is  thereby  greatly  damaged. 

2.  And  also  for  this  that  said  defendants,  ever  since  the 
organization  of  said  S  company  mentioned  and  described  in  the 
first  count  in  this  declaration,  have  been  officers  thereof,  to  wit: 

,  president ; ,  treasurer ; , 

secretary ;  and  as  such  immediately  after  the  organization  of 
said  company  proceeded  to  cause  a  well  to  be  drilled  on  said 
territory  of  said  company ;  that  said  well  produced  oil,  that  said 
defendants  then  and  for  a  long  time  thereafter  represented  to 

this  plaintiff  that  the  said  well  was  producing barrels  of 

oil  daily;  and  this  plaintitf,  to  wit,  on  the day  of 

,19..,  ai)plied  to  said  defendants  for  information 

concerning  the  production  of  oil  from  said  well,  telling  said  de- 
fendants, at  the  time,  that  a  party  had  offered  to  sell  said  plain- 
titf some  stock  in  said  company,  and  said  plaintiff  sought  in- 
formation upon  which  to  place  a  value  upon  said  stock ;  that 
said  defendants  holding  the  offices  in  said  company  as  aforesaid, 
did  then  and  there,  knowingly,  wilfully,  falsely  and  fraudu- 
lently tell  this  plaintiff  that  said  well  was  producing 

barrels  of  oil  daily,  and  that  it  was  very  valuable ;  that  the  stock 

of  said  company  was  selling  at  the  price  of dollars 

for  one  dollar  of  the  capital  stock  of  said  company,  and  that  it 
would  be  worth  more. 

This  plaintiff,  relying  wholly  and  solely  upon  the  statements 
made  to  him  by  these  defendants  as  aforesaid,  entered  upon  the 
negotiations  for  said  stock  and  became  the  purchaser  of  a  large 
amount  of  stock  of  the  said  corporation,  for  which  he  paid  the 
sum  of  $ in  money. 

And  this  plaintiff  says  that  said  defendants,  by  means  of  these 
premises  on  the  day  aforesaid,  did  knowingly,  wilfully,  falsely 
and  fraudulently  misrepresent  the  facts  and  deceive  the  plain- 
tiff as  to  amount  of  production  of  oil  of  said  well  and  as  to  the 
value  of  said  stock  as  aforesaid;  that  said  stock,  there'oy,  is 
worthless  and  of  no  value  and  that  upon  the  day  aforesaid  had 
no  value  to  this  plaintiff,  and  that  the  plaintiff  has  suffered 
great  damage  by  reason  of  the  money  paid  out  for  said  oil  stock, 
the  loss  and  use  of  said  money  and  the  interest  thereon  and 
that  he  is  thereby  greatly  damaged. 

And  therefore,  the  said  plaintiff  says  that  by  reason  of  the 
premises  and  the  matters  and  things  in  the  said  two  counts  in 
this  declaration  before  mentioned,  an  action  hath  accrued  to 


CASE 


683 


him  to  have  and  to  demand  of  and  from  the  said  defendants 
for  and  by  reason  of  the  false  statements,  misrepresentations 
and  deceit  and  fraud  practiced  in  said  two  counts  mentioned, 

damages  to  the  amount  of  $ •  • 

And  therefore  he  brings  this  suit. 

1305  Fraud  and  deceit;  shares  of  capital  stock,  Narr.  (111.) 

For  that  whereas,  on  or  about  the day  of  . . . ... 

19  in  the  county  aforesaid,  in  consideration  that  tne 
plaintiff  at  the  request  of  the  defendant,  would  buy  of  the 
defendant,  the  defendant's  shares  of  capital  stock,  same  being 

. .  interest  in  the ,  a  corporation  at  a  certain 

pHce,  to  wit,  the  sum  of   (...••  • )   dollars  cash 

to 'be  paid  therefor  by  the  plaintiff,  the  defendant  promised  the 

plaintiff  and  represented  to  him  that  the  said •  was 

a  corporation  doing  a  large  and  remunerative  business  and  that 

the  same  was  clearing   per  year  profit;  and  that  he, 

the  plaintiff,  if  he  purchased  said  interest,  could  draw 

per  year  salary  for  acting  as  one  of  the  officers  of  said  corpora- 
tion •  and  thereupon  the  said  plaintiff",  confiding  and  relying  on 
the  said  promise  of  the  defendant,  then  and  there  bought  the 
said  shares  of  capital  stock  and  interest  of  the  defendant  and 
paid  him  the  said  sum  of  money.  Yet  the  defendant  did  not 
regard  his  said  promise  but  thereby  deceived  and  defrauded 
the  plaintiff,  in  this,  to  wit,  that  the  said  corporation  was  not 

doing  a  good  and  large  business,  and  was  not  clearing 

per  year  profit,  and  was  not  in  a  position  to  pay 

dollars  to  plaintiff  for  salary  as  an  officer  of  said  corporation, 
but  on  the  contrary  said  corporation  had  been  insolvent  tor  a 
long  space  of  time,  to  wit,  for year  previous  to  the  mak- 
ing of  said  representation  and  promise  and  had  been  doing  busi- 
ness at  a  loss;  all  of  which  said  defendant  well  knew  at  the 
time  of  making  said  representation  and  promise,  whereby  said 
shares  of  capital  stock  and  interest  in  said  corporation  then 
and  there  became  and  were  of  no  value  to  plaintiff ;  wherefore 
the  plaintiff  says  he  is  injured  and  has  sustained  damages  to 

the  amount  of  \ ( )    dollars,  and  therefore 

he  brings  his  said  suit. 

1306  Fraud  and  deceit;  unrecorded  trust  deed,  Narr.  (111.) 

For  that  whereas  the  defendant  at,  to  wit,  the 

day  of       ,  19.  .,  in,  to  wit,  the  county  of , 

and  state  of  Illinois,  being  an  owner  and  dealer  in  real  estate ; 
the  plaintiff  then  and  there  applied  to  the  defendant  and  bar- 
gained with  him  for  the  purchase  by  the  plaintiff  from  the 
defendant  of  a  certain  parcel  of  land  situate  in,  to  wit,  the  city 

of  ,  in  the  county  and  state  aforesaid,  to  wit, 

(Describe  real  estate)  ;  that  prior  to  the  time  of  said  bargain- 


684  ANNOTATED   FORMS   OF   PLEADING    AND   PRACTICE 

ing  between  him  and  the  defendant  for  the  purt-haije  of  said 

parcel  of  land  as  aforesaid,  the  defendant  and  his  wife, 

,  on,  to  wit,  the day  of ,  I'J . . , 

executed  and  acknowledged  a  certain  deed  of  trust  conveying 
the  said  parcel  of  land,  together  with  certain  other  land,  to  1> 

to  secure  the  payment  of,  to  wit,    ( ) 

dollars,  with  interest  thereon,  etc.;  that  at  the  time  of  the  said 
bargaining  between  the  phiintiff  and  the  defendant  for  the  pur- 
chase of  said  parcel  of  land,  as  aforesaid,  said  last  mentioned 
deed  of  trust  was  in  full  force  and  effect  and  unsatisfied,  and 
an  incumbrance  against  said  parcel  of  land,  had  not,  at  the 
time  last  aforesaid,  been  i)hieed  on  record;  that  it  became  and 
was  the  duty  of  the  defenthmt,  at  the  time  and  place  aforesaid, 
to  inform  and  notify  the  i)hiintift'  of  the  existence  of  said  ih'vd 
of  trust;  that  at  the  time  and  phice  aforesaid,  in  consideration 
that  the  plaintiff  at  the  recjuest  of  the  defendant  would  pur- 
chase of  the  defendant  the  said  parcel  of  land  hereinbefore 

described  at  an  agreed  price  of,  to  wit,  the  sum  of 

( )    dollars,   to  be   therefor  paid   by  the  plaintiff',   the 

defendant,  with  the  intention  and  for  the  purpose  of  inducing 
the  plaintiff  to  purchase  said  parcel  of  land  wrongfully,  injuri- 
ously and  contriving  and  intending  to  deceive,  defraud  and 
injure  the  plaintiff,  fraudulently  and  deceitfully  refrained  from 
informing  the  plaintiff  of  the  execution  and  existence  of  siiid 
deed  of  trust,  or  that  the  same  was  then,  on  the  day  last  afore- 
said, an  incumbrance  against  said  parcel  of  land. 
_  And  the  plaintiff  further  avers  that  he  then  and  there,  at  the 
time  and  place  la.st  aforesaid,  relied  upon  the  silence  of  the 
defendant  in  regard  to  the  existence  of  any  incumbrance  against 
said  parcel  of  land  as  an  indication  or  Vepresentation  by  the 
defendant  that  there  then  existed  no  incumbrance  upon  said 
parcel  of  land;  and  that  the  plaintiff  then  believed  that  there 
was  then  no  incumbrance  or  cloud  upon  the  title  to  said  parcel 
of  land,  and  that  thus  relying  upon  the  silence  of  the  defend- 
ant and  failure  to  notify  the  plaintiff  of  the  fact  as  aforesaid, 
the  plaintiff  then  and  there  purchased  from  the  defendant,  and 
the  defendant  then  and  there  deceitfully  sold  the  said  parcel 
of  land  to  the  plaintiff  for  a  large  sum  of  money,  to  wit,  the 

sum  of ( )  dollars,  which  said  sum  of  money 

the  plaintiff  thereafter,  on,  to  wit,  the    day  of 

•  •; ,  1 ,  and  before  the  plaintiff  discovered  the 

existence  of  said  deed  of  trust  and  the  cloud  upon  the  title  of 
the  defendant  to  said  parcel  of  land,  paid  the  defendant. 

And  the  plaintiff  further  avers  that  at  the  time  he  bargained 
with  the  defendant  for  the  purchase  of  said  parcef  of  land,  as 
aforesaid,  the  defendant  knew  that  by  his  silence  and  failure  to 
inform  the  plaintiff  of  the  existence  of  said  deed  of  trust  as  an 
incumbrance  upon  said  parcel  of  land,  that  the  plaintiff  would 
conclude  and  believe  that  no  incumbrance  or  deed  of  trust  existed 


CASE  685 

as  a  lien  or  cloud  upon  the  defendant's  title  to  said  parcel  of 
land. 

That  the  said  incumbrance  of ( )  dollars 

has  not  been  removed  from  said  parcel  of  land ;  but,  on  the  con- 
trary, the  plaintiff  avers  that  said ( )  dol- 
lars then  remaining  unpaid  and  due,  the  then  owner  and  holder 
of  certain  notes  evidencing  said  ( )  dol- 
lars indebtedness,  to  wit,  one  S,  and  the  said  D  as  trustee,  on, 

to  wit,   ,  1....,  filed  their  bill  in  chancery  in  the 

circuit  court  of county  and  state  aforesaid  against 

the  plaintiff  and  the  defendant  and  his  said  wife  to  foreclose 
the  said  trust  deed  upon  the  property  in  said  trust  deed  to  said 
D  described ;  and  that  such  proceedings  were  thereafter  had 
in  said  suit  by  said  S,  and  said  D,  trustee,  that  the  said  parcel 
of  land  was  sold  under  an  order  of  said  circuit  court  to  some 
person,  or  pei*sons,  to  the  plaintiff  unknown,  but  other  than  the 
plaintiff',  the  said  defendant  or  his  said  wife,  or  either  of  them ; 
and  that  the  period  of  redemption  under  said  sale  of  said  last 
mentioned  property,  by  the  statute  in  such  case  made  and  pro- 
vided, has  expired;  that  no  redemption  of  the  parcel  of  land 
has  been  made ;  that  the  said  parcel  of  land  has  been  taken 
from  the  plaintiff  by  virtue  of  said  proceedings  and  said  sale 
in  said  circuit  court ;  and  that  by  reason  of  the  premises  the 
saitl  parcel  of  land  then  and  there  became  and  was  of  no  value 
to  the  plaintiff.    Wherefore,  etc. 

1307  Hig^hways  and  bridges,  action,  parties 

In  ^Michigan  the  oversi^er  of  highways  of  each  district,  or  in' 
case  of  his  neglect  or  refusal,  or  in  case  he  is  himself  the  offender, 
then  the  commissioner  of  highways  of  each  district,  and  not  the 
township,  should  bring  an  action  for  damages  done  to  highways 
and  bridges.^'* 

1308  Hotel  and  inn-keepers,  stolen  property,  action 

Hotel  and  inn-keepers  owe  a  duty  towards  their  guest's  prop- 
erty imposed  by  the  common  law  for  a  breach  of  which  duty  an 
action  on  the  case  will  lie  in  favor  of  the  guest  whose  property' 
is  stolen  through  the  inn-keeper's  dishonest  employees,  unless 
the  guest's  carelessness  substantially  contributes  to  the  theft. ■'•'^ 

1309  Inadequate  fire  protection,  action 

In  Illinois  the  property  o^vner  cannot  hold  a  municipality  or 
water  company  liable  for  loss  by  fire  occasioned  by  the  failure 

34  Denver  Township  v.  White  River  35  Johnson  v.  Eichardson,    17   111. 

Lne  &  Booming  Co.,  51  Mich.  472,       302  (1885). 
473    (1883). 


686  ANNOTATED   FORMS  OP   PLEADING   AND  PRACTICE 

of  the  water  company  to  furnish  an  adequate  supply  of  water 
for  fire  protection,  where  the  municipality  has  contracted  with 
the  water  company  to  construct  and  operate  water  works  for  the 
purpose  of  furnishing  water  to  the  city  and  its  citizens. ^^ 

1310  Infectious  premises,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of 

,  19. .,  at,  to  wit,  the  county  aforesaid,  and  for  a  long 

time  prior  thereto,  the  plaintiffs  were  the  owners  of  and  in  the 
lawful  possession  of  the  premises  described  as  follows:  (Set 
forth  description),  together  with  the  dweiliii]','  house  or  build- 
ing and  its  appurtenances  thi'reon  stantliug  and  belonging  of 
the  value  of  dollars,  which  said  land  and  prem- 
ises said  plaintiffs,  i)efore  and  at  the  time  aforesaid,  used  and 
enjoyed,  and  of  right  ought  to  have  used  and  enjoyed,  as  and 
for  a  home  and  dwelling  house  or  tenement  house  purposes,  and 
still  of  right  ought  to  use  and  enjoy  as  aforesaid;  nevertheless, 
said  defendant,  acting  at  the  time  aforesaid,  and  long  before 
and  hitherto  has  acted,  and  still  acts,  by  means  of  a  common 
council  in  that  behalf,  having  the  care,  superintendence  and  wel- 
fare of  said  city  defendant,  contriving  unjustly  and  unlaw- 
fully to  injure  plaintiffs  in  the  possession,  use,  occupation  and 
enjoyment  of  said  premises,  and  especially  said  house  and  build- 
ing thereon  standing  as  aforesaid,  and  to  render  said  premises 
incommodious  and  unfit  for  home,  dwelling  house  or  tenement 
house  purposes,  and  of  little  or  no  use  to  plaintiffs,  while  said 
plaintiffs  were  so  possessed  thereof,  and  so  used  and  enjoyed 

the  same  as  aforesaid,  on,  to  wit,  the day  of 

,  by  its  said  common  council,  aforesaid,  passed  or  caused 

to  be  passed  and  enacted  a  certain  ordinance,  to  wit,  ordinance 
number ,  entitled,  "An  ordinance  to  condemn  as  a  nuis- 
ance the  wooden  building  known  as  the ,  situate  on  .... 

lot,  in  block  .  .  .  . ,  in  that  part  of  the  city  known  as 

and  to  authorize  and  direct  the  destruction  of  the  same  and 
its  contents,"  which  ordinance,  was  approved  by  the  mayor 

on  the  day  of ,  19. .,  and  is  hereto 

attached,  marked  exhibit  "A,"  as  a  part  of  this  declaration, 
was  and  is  illegal  and  void,  as  an  unwarranted  and  improper 
exercise  of  arbitrary  power  and  discretion,  contrary  to  the  con- 
stitution and  statutes  of  this  state,  and  otherwise  is  ultra  vires 
and  illegal. 

By  means  whereof,  said  defendant  then  and  there  arbitrarily 
and  without  lawful  authority  undertook  to  declare,  and  did 
declare  plaintiffs'  said  premises,  to  wit,  the  building  and  house 
thereon  as  aforesaid,  by  reason  of  the  alleged  infectious  diseases 

36  Galena  v.  Galena  Water  Co.,  229 
111.  128,  132  (1907). 


CASE  687 

therein,  to  wit,  smallpox,  to  be  a  public  nuisance,  without  any- 
authoritative  investigation  or  inquisition  beforehand,  or  the 
finding  of  any  jury  or  tribunal  that  the  same  was  so  infected  as 
to  be  inimical  or  a  menanee  to  the  welfare  of  the  public,  and 
when  the  same  was  not  then  and  there  incapable  of  disinfec- 
tion and  was  not  then  and  there  a  nuisance  or  menace  to  the 
public ;  and  did  without  notice  to  plaintiffs,  or  compensation  to 
them  paid,  or  any  finding  or  award  of  damages  to  plaintiffs, 
or  any  offer  by  said  city  in  that  behalf  to  reimburse  plaintiffs, 
by  said  ordinance  proceed  to  and  did  condemn  said  premises, 
to  wit,  the  house  and  building  thereon  as  aforesaid,  to  be  utterly- 
destroyed  and  removed,  together  with  the  appurtenances  and 
contents  thereof;  and  said  defendant,  by  its  servants  and  offi- 
cers in  that  behalf,  acting  or  pretending  to  act  under  and  by- 
virtue  of  the  authority  of  said  ordinance,  on,  to  wit,  the  day 
first  aforesaid,  at,  to  wit,  the  county  aforesaid,  entered  upon 
plaintiffs'  said  premises,  and  did  then  and  there  set  fire  to, 
consume,   and  utterly  destroy  said  house  or  building  and  its 

appurtenances,  then  and  there  being,  of  the  value,  to  wit, 

dollars ;  and  did  so  as  aforesaid  commit  the  grievances 

complained  of,  without  the  leave  or  license,  and  against  the  will 
of  the  plaintiffs,  from  the  time  aforesaid,  to  wit,  hitherto,  and 
without  any  compensation  whatsoever  paid  plaintiffs,  or  any 
one  of  them,  or  anything  by  way  of  reward  or  satisfaction  there- 
for; and  thereby  during  the  time  aforesaid,  the  defendant,  by 
the  means  aforesaid,  did  greatly  injure  and  damage  said  prem- 
ises, and  did  hinder  and  prevent  plaintiffs  from  having  the 
use,  benefit  and  enjoyment  thereof,  to  the  amount  and  extent 
so  as  aforesaid  specified,  and  did  thereby  deprive  plaintiffs 
utterly  of  the  use  and  benefit  of  said  house  and  building,  to 
the  damage  of  plaintiffs  of dollars. 

2.     And  for  that  whereas,  on,  to  vnt,  the  day 

of    ,   19..,   at,   to   wit,   the   county   aforesaid,   the 

plaintiffs  were  the  owners  of  and  in  the  lawful  possession  of  the 
premises  hereinbefore  described,  and  commonly  known  as  the 

of  the   value,   to  wit,   of    dollars, 

which  said  house  and  premises  the  plaintiffs,  before  and  at  the 
time  aforesaid,  used  and  enjoyed,  and  of  right  ought  to  have 
used  and  enjoyed,  as  and  for  a  home,  dwelling  house  or  tene- 
ment house  purposes,  and  did  have,  use  and  enjoy  the  rents, 

issues  and  profits  thereof,  amounting,  to  wit,  the  sum  of 

dollars  per  annum ;  and  said  plaintiffs  being  so  possessed 

of,  using  and  enjoying  said  property,  and  the  rents,  issues  and 

profits  thereof,  as  aforesaid,  the  defendant,  city  of , 

on,  to  wit,  the day  of ,  19 .  . ,  at,  to 

wit,  the  place  aforesaid,  enacted,  or  caused  to  be  enacted  by  its 
city  council  in  that  behalf,  a  certain  ordinance,  to  wit,  ordinance 
number  . . . .,  entitled,  "An  ordinance  to  condemn  as  a  nuisance 

the  wooden  building  known  as  the situate  on  lot  . . . ., 

in  block  . . . .,  in  that  part  of  the  city  known  as , 


688  ANNOTATED   FORMS   OF   PLEADING   AND    PRACTICE 

and  to  authorize  the  destruction  of  the  same  and  its  contents;" 
which  ordinance,  was  approved,  by  the  mayor  on  the  day  afore- 
said is  in  the  foregoing  count  set  out,  attached  and  marked 
exhibit  "A,"  and  is  hereby  made  part  of  this  count  by  refer- 
ence ;  in  which  ordinance  so  passed  and  enacted  it  was  ordained, 
by  section  ,  that  whereas,  said  was  occu- 
pied by  a  large  number  of  persons  infected  and  surt'eniig  with 
smallpox,  and  whereas,  said  house  was  impregnated  with  the 
germs  of  said  disease,  and  was  in  such  condition  that  it  could 
not  be  successfully  disinfected,  and  that  necessity  reijuired  its 
destruction,  it  was  thereby  declared  to  be  a  public  nuisance; 
by  (section  .  . . . )  it  was  required  that  the  health  commissioner 
of  said  city  remove  all  occupants  of  siiid  house  to  the  pest-house 

or  other  place  of  isolation,  etc. ;  and  (section )  provided 

tluit  after  removal  of  said  occupants,  the  superintendent  of 
streets,  health  commissioner  and  fire  marshal  of  said  city  should 
tear  down  said  house,  and  wholly  destroy  tlie  deliris  and  con- 
tents impregnated  or  exposed  to  the  germs  of  said  disease,  and 
not  capable  of  disinfection. 

The  plaintiffs  allege   that  said  premises,   described   in   said 

ordinance  as  the   was  not  a  public  nuisance,  or 

by  reason  of  the  germs  of  said  disease  so  permeated  therewith 
as  to  be  incapable  of  fumigation  and  disinfection;  that  said 
house  then  and  there  was  not  necessarily  a  menace  or  inimical 
to  the  health  and  welfare  of  said  city  and  inhabitants;  that  it 
became  and  was  the  duty  of  defendant  to  deprive  the  plaintiffs 
of  said  property  and  destroy  the  same  only  by  due  process  of 
law ;  that  said  ordinance,  so  enacted  and  passed,  was  an  arbitrary 
and  improper  exercise  of  the  power  and  discretion  of  said  city 
council,  and  illegal  and  void;  that  it  became  and  was  the  duty 
of  said  city,  before  proceeding  to  take,  condemn  and  destroy 
said  property  for  the  use,  benefit  and  protection  of  the  public, 
as  by  said  ordinance  claimed  and  pretended,  to  ascertain  by 
some  authoritative  measures  or  investigation,  by  the  determi- 
nation of  inquisition,  by  the  decision  of  a  jury,  or  by  some 
other  legal  and  proper  means,  that  said  property  was  a  public 
nuisance  and  detrimental  to  the  safety  and  welfare  of  the  peo- 
ple ;  that  it  became  and  was  the  duty  of  said  city,  before  pro- 
ceeding to  take,  condemn  and  destroy  said  property  for  and 
on  behalf  of  the  public  and  its  welfare,  to  institute  proceedings 
under  the  law  of  eminent  domain,  or,  in  some  legal  and  proper 
method,  ascertain  the  just  compensation  in  damages  to  be 
awarded  plaintiffs  and  to  award  and  to  pay  the  same  to  them 
in  money,  before  taking  and  destroying  the  same ;  that  it  became 
and  was  the  duty  of  said  city,  by  its  servants  in  that  behalf,  not 
to  destroy  said  property  utterly,  but  to  undertake  to,  and  fumi- 
gate and  disinfect  the  same,  and  to  save  and  keep  from  destruc- 
tion, for  and  on  behalf  of  plaintiffs,  so  much  thereof  as  might 
be  of  value  or  use  in  the  construction  of  another  house  or  build- 
ing. 


CASE  689 

Yet,  the  said  city  of ,  by  its  officers  and  servants 

in  that  behalf,  disregarding  its  duties  as  aforesaid,  under  said 
ordinance,  proceeded  to  and  did  condemn  the  plaintiffs'  said 
property  as  a  public  nuisance,  without  any  lawful  or  authorita- 
tive investigation  or  determination,  beforehand,  or  judicial  pro- 
ceedings, or  otherwise  as  aforesaid,  that  the  same  was  obnoxious 
to  the  public,  without  notice  to  plaintiffs,  or  any  proceedings 
under  the  law  of  eminent  domain,  or  any  ascertainment  of  the  just 
compensation  in  damages  to  be  awarded  and  paid  plaintiffs,  and 
without  any  other  effort  or  means  of  protecting  the  plaintiffs 
and  their  rights  in  said  property,  on,  to  wit,  the  day  aforesaid, 
at,  to  wit,  the  county  aforesaid,  proceeded  to  and  did  condemn 
said  property  as  aforesaid,  and  by  its  servants  and  officers  in 
that  behalf,  unlawfully  entered  upon  said  premises,  tore  down 
said  building  set  fire  to  and  utterly  destroyed  the  same  and  its 
appurtenances,  without  the  leave  or  license,  and  against  the 
will  of  plaintiffs  from  the  time  aforesaid,  to  wdt,  hitherto;  and 
thereby  the  defendant,  by  its  servants  as  aforesaid,  did  greatly 
injure  said  premises,  and  did  deprive  the  plaintiffs  from  the 
use  and  enjoyment  of  said  house  and  building,  and  the  rents, 
issues  and  profits  thereof  as  aforesaid,  so  that  by  means  of  the 
premises  the  said  building  was  taken  and  destroyed;  to  the 
great  damage,  etc.^^ 

1311  Interference  with  public  sale,  declaration,  requisites 
In  an  action  for  damages  arising  from  a  wrongful  and  ma- 
licious interference  with  an  administrator's  or  an  executor's 
sale,  the  declaration  must  specifically  allege  special  damages,  how 
and  in  what  manner  they  were  sustained,  and  that  the  damages 
actually  and  positively  occurred  in  consequence  of  the  defend- 
ant's wrongful  acts  and  not  in  any  degree  with  the  plaintiff's 
own  negligence  or  omission.^* 

INTOXICATION 

1312  Nature  and  scope  of  action,  parties 

An  action  under  the  Illinois  Dram-shop  act  is  civil  and  not 
penal  in  its  nature.^^  Any  person  who  is  injured  in  person, 
property  or  means  of  support,  either  by  an  intoxicated  person 
or  in  consequence  of  the  intoxication  of  any  person,  has  a  cause 
of  action  against  the  person  causing  the  intoxication,  regardless 
of  any  business  or  personal  relation  between  the  person  injured 
and  the  intoxicated  person.^<* 

37  Sings  V.  Joliet,  237  111.  300  ss  Woods  v.  Dailey,  211  111.  495, 
(1908).  496   (1904). 

38  Burnap  v.  Dennis,  3  Scam.  478,  "  Nagle  v.  Keller,  237  111.  431, 
481  (1842).  432,  433  (1908). 


690  ANNOTATED  FORMS  OF   PLEADING  AND   PRACTICE 

A  parent  who  is  obliged  to  support  an  adult  son  on  account  of 
his  habitual  intoxication  has  a  right  of  action  against  the  person 
who  caused  the  intoxication, ^i  This  right  of  action  exists  under 
Michigan  Civil  Damage  act,  notwithstanding  the  absence  of  an 
order  of  court  for  the  support  of  a  parent. "^^  The  wife  and  the 
children  may  join  in  a  single  action  to  recover  damages  for  the 
unlawful  sale  of  intoxicating  liquor  to  the  husband  and  father 
where  their  support  was  joint,  although  the  wife  and  the  chil- 
dren have  separate  actions  for  the  same  loss.^^ 

A  party  is  liable  if  he  causes  in  part  the  intoxication  which 
produced  the  injury..^-*  Each  person  who  assists  in  bringing 
about  an  habitual  drunken  condition  of  another  person  is  liable, 
under  the  Illinois  statute,  for  the  acts  of  all  persons  who  contrib- 
uted by  the  furnishing  of  intoxicating  liquors  in  producing  that 
condition.*^ 

1313  Principal  and  surety,  action 

In  Michigan,  the  principal  and  his  sureties  for  successive  years 
are  responsible,  under  the  statute,  for  the  entire  injury  caused 
by  intoxication,  where  the  damages  claimed  are  not  the  result 
of  a  specific  act  of  intoxication,  but  extend  through  a  period  of 
time  and  the  unlawful  acts  are  permitted  after  the  execution  of 
the  bonds.^*^ 

1314  Joinder  of  causes 

The  Illinois  Dram-shop  act  authorizes  the  bringing  of  a  several 
action  against  each  person  who  violates  the  act,  or  the  joining 
in  one  suit  of  all  persons,  whether  sellers  of  intoxicating  liquors 
or  the  owners  of  the  buildings  in  which  the  liquor  is  sold.  But 
the  mere  joining  of  these  parties  in  one  suit  does  not  authorize 
a  recovery  against  all  unless  their  liability  is  established  by 
proof.  The  right  to  join  two  or  more  violators  of  said  Act  in 
one  suit  is  merely  a  question  of  pleading,  and  not  one  of  liability 
to  respond  in  damages.^^ 

41  Danley  v.  Hibbard,  222  111.  88  45  Earn  v,  Lilly,  217  111.  582,  587 
(1906).  (190.5). 

42  Eddy  V.  Courtright,  91  Mich.  46  Merrinane  v.  Miller,  1.57  Mich. 
264,  268    (1892).  279,  282    (1909). 

43  Helmuth  v.  Bell,  150  111.  263,  47  Hedlund  v.  Geyer,  234  111.  589. 
267  (1894).  591   (1908). 

44  TrijTgg  V.  Mclntyre,  215  111.  369, 
276   (1905). 


CASE  691 

Under  the  Civil-Damage  laAv  of  Michigan  two  different  saloon 
keepers  and  the  bondsmen  of  each  may  be  joined  in  one  action, 
where  several  persons,  by  selling  or  furnishing  liquor,  contribute 
to  an  intoxication  which  results  in  actionable  injuries ;  ^^  or 
the  action  may  be  brought  against  a  surety  alone.^^ 

1315  Declaration  requisites,  joint  liability 

The  OAvner  of  the  premises  in  which  intoxicating  liquors  are 
sold  unlawfully  may  be  charged  jointly  with  the  seller  of  the 
liquors  in  an  action  brought  against  them  jointly.^o 

1316  Brother's  intoxication,  Narr.  (111.) 

For  that  whereas  the  plaintiff  is  the  sister  of  one  N,  who  died 
as  hereinafter  mentioned,  and  for  a  long  time  past,   to   wit, 

years,  has  been  infirm  and  of  delicate  health  and 

unable  to  earn  a  livelihood  for  herself,  and  was  supported  by, 
and  depended  for  her  support  on  said  N  at  the  time  of  the  com- 
mitting of  the  grievances  hereinafter  mentioned  and  for  a  long 

time,  to  wit, years,  prior  thereto,  and  the  said  N  for 

a  long  time  before  the  committing  of  the  grievances  hereinafter 
mentioned  was  engaged  in  the  book  binding  and  stationery  busi- 
ness and  derived  therefrom  a  large  yearly  income,  to  wit,  the 

yearly  sum  of    ($ )    dollars,  and  was  also 

possessed  of  moneys  and  property  amounting  in  value  to  a  large 
sum  of  money,  to  wit,  the  sum  of ($ )  dol- 
lars, and  by  means  thereof  was  enabled  to  and  did  provide  a 
comfortable  and  liberal  maintenance  as  well  for  himself  as  for 

the  plaintiff.     And  the  said  C  D,  on,  to  wit,  the  

day  of ,  19 . . ,  in  the  city  of ,  county 

of ,  and  state  of  Illinois,  in  a  certain  building  and 

premises  known  as,  to  wit,  number , street, 

by  him  then  and  there  occupied,  did  carry  on  and  conduct  the 
business  of  a  dram-shop,  and  the  said  K  during  a  long  period, 

to  wit,    years,  before  that  time  and  then  being  the 

lessor  of  the  said  building  and  premises,  and  having  knowl- 
edge that  intoxicating  liquors  were  to  be  and  were  being  sold 
therein,  there  permitted  the  occupation  of  the  said  building  and 
premises  by  the  said  C  D  for  such  purpose. 

And  on  the  day  aforesaid  and  on  divers  other  days  during 

a  period  of,  to  wit, years  before  said  day,  the  said  C  D 

there  sold  and  gave  intoxicating  liquors  to  the  said  N,  and  thereby 
caused  him,  the  said  N,  to  become,  and  he  during  that  time 
there  was  from  time  to  time  intoxicated;  and  so  being  from 

is  Franklin  v.  Frey,  106  Mich.  76  ts  Scahill  v.  Aetna  Indemnity  Co., 

/1895^  157  Mich.  310,  311   (1909). 

^  soHelmuth  v.  Bell,  150  111.  266. 


692  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

time  to  time  intoxicated,  he,  the  said  N,  in  consequence  thereof, 
during  the  time  last  aforesaid,  there  wasted  and  squandered 
all  his  moneys  and  property,  and  became  greatly  impoverished, 
reduced  and  degraded,  and  wholly  ruined,  as  well  in  his  mind 
and  body  as  in  his  estate,  and  neglected  and  ceased  to  exercise, 
or  attend  to  the  duties  of  his  aforesaid  business  and  calling,  or 
any  other  business  or  calling  whatsoever,  or  in  any  manner  to 
earn  or  provide  a  livelihood  for  himself  or  for  the  plaintiff; 
and  in  further  conseciuence  of  the  intoxication  of  tlie  said  N, 
as  aforesaid,  so  by  the  defendant  caused  as  aforesaid,  he,  the 

said  N,  on,  to  wit,  the day  of ,  1 . . .  . , 

aforesaid,  there  died.  By  means  of  which  premises  the  plaintiff 
has  been  and  is  injured  in  her  means  of  support,  and  deprived 
of  the  same.     Wherefore,  the  plaintiff  says  that  she  is  injured 

and   has  sustained   damages   to    tlie    amount   of    

($ )    dollars,   and   that    by   the    force   of  the   statute   in 

such  case  made  and  provided  an  action  has  accrued  to  her  to 
demand  and  have  of  the  defendants  said  sum  of  money;  there- 
fore the  plaintiff  brings  her  suit,  etc. 

1317  Husband's  intoxication,  Narr.   (W.  Va.) 

For  this,  that  the  plaintiff  was  on  the   day  of 

,  19.  .,  the  lawful  wife  of ,  and  had 

been  his  lawful  wife  for  a  long  time  prior  thereto,  and  con- 
tinued to  be  the  lawful  wife  of  the  said up  until 

the  day  of  ,  19.  . ,  when  he  lost  his 

life  as  a  conse(iuence  of  the  unlawful  acts  of  the  said  defend- 
ant, as  hereinafter  set  forth,  and  that  prior  to  the  said 

day  of ,  19 . . ,  the  said   ,  her 

husband,  had  become  addicted  to  drinking  intoxicating  liiiuors 
to  excess,  and  prior  to  the  said  last  mentioned  day,  and  thence 

thereafter  until  his  said  death  occurred,  the  said , 

had  formed  and  acquired  the  habit  of  drinking  liquors  to  intoxi- 
cation ;  that  on   the  said    day   of    , 

19.  .,  the  defendant  was  engaged  in  the  business  of  selling  intoxi- 
cating liquors  in  the  tow'n  of ,  in  said  county,  hav- 
ing a  state  license  so  to  do,  and  had  been  engaged  in  said  busi- 
ness at  said  place,  for  about   years  prior  to  said  day, 

and  is  still  engaged  therein,  having  all  that  time  such  a  license; 

that  long  prior  to  the  said day  of , 

19..,  the  said  defendant  began  to  furnish  and  sell  to  the  said 

intoxicating  liquors  and  from  the  said 

day  of ,  19.  .,  and  up  until  the  death  of  the  said 

,  continued  to  sell  to  the  said  such 

intoxicating   liquors  while   the   said    was  in  the 

habit  of  drinking  to  intoxication  as  aforesaid,   and  also  sold 

the   said    such   intoxicating   liquors,    within   the 

period  aforesaid,  when  he  was  in  an  intoxicated  condition ;  and 
the  plaintiff  says  that  all  the  time  aforesaid,  when  the  said 


CASE 


693 


defendant  was  so  furnishing  the  said nitoxicating 

liquors  as  aforesaid,  and  while  he  was  in  the  habit  of  drinking 
to  intoxication,  and  was  intoxicated,  the  said  defendant  had 

reason  to  believe,  and  in  fact  knew  that  the  said :•••.••• 

was  intoxicated  and  in  the  habit  of  drinking  to  intoxication; 
but  the  said  defendant,  notwithstanding  that  he  had  reason  to 

believe  and  knew  that  the  said  was  m  the  habit 

of  drinking  to  intoxication,  on  the day  of  ...... 

.,  19.  .,  and  after  the  said  defendant  had  the  information 
aforesaid,  he'  the  said  defendant,  in  total  disregard  of  his  legal 

duty  under  his  said  license,  sold  and  furnished  the  said . . 

intoxicating  liquors,  and  continued  to  make  such  sales 
and  to  so  furnish  him  with  such  intoxicating  liquors  from  said 
last  mentioned  day  up  until  his  said  death,  and  that  too  while 
the  said was  intoxicated  and  in  the  habit  of  drink- 
ing to  intoxication,  whereby  and  in  consequence  of  such  sales 

and  furnishing  intoxicating  liquors  to  the  said • , 

the  said  became  and  was  greatly  intoxicated ;  and 

while  so  intoxicated,  the  said neglected  his  work 

and  squandered  his  money,  and  thereby  injured  the  plaintiff 
in  her  means  of  support ;  and  also  while  so  intoxicated  injured 
the  said  plaintiff  in  her  person,  in  this :  that  he  abused,  cursed, 
ill-treated  and  threatened  the  life  of  the  said  plaintiff  and  caused 
her  great  humiliation  and  grief;  and  all  in  consequence  of  the 
unlawful  acts  of  the  said  defendant  in  furnishing  and  selling 

to  the  said intoxicating  liciuors  aforesaid,  whereby 

the  said  plaintiff's  husband  became  and  was  intoxicated  as  afore- 
said. ,       ,  „  ., 

And  thereupon  the  said  plaintiff  says,  that  by  reason  ot  the 
aforesaid  premises,  an  action  hath  accrued  to  her,  to  demand 
and  have  of  and  from  the  said  defendant,  for  and  by  reason  of 
the  said  grievances,  wrongs  and  injuries,  damages  to  the  amount 
of ($ )  dollars.    And  therefore  she  sues.^^ 

1318  Parent's  intoxication,  Narr.  (111.) 

For  that  whereas  the  plaintiffs,  on  and  before  the 


day  of   ,  19.  .,  in  the  said  county,  were  the  chil- 
dren of  one  J  H  and  M  H,  his  wife,  the  said being 

on  the  day  aforesaid  about years  old, 

being  about   years  old,  and   being 

about   years  old.  .      ^  „  .      .       ^    . 

And  the  plaintiffs  aver  that  the  said  J  H,  on  the  day  last 
aforesaid  and   for  a  long  time  next  preceding  that  day,  was 

by  trade  a  carpenter  and  about  the  age  of,  to  wit, 

years,  and  on  or  about,  to  wit, day  of ,  19 .  ., 

was  strong  in  body  and  capable  of  earning  a  large  yearly  income 

51  Penninf?ton   v.   Gillaspi,    63    W. 
Va.  541  (1908). 


694  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

by  his  trade,  to  wit,  the  yearly  sum  of ($ ) 

dollars ;  and  on  the   day  of   ,  19 . . , 

and  on  many  and  divers  other  days  prior  thereto  for  a  long 

period  of  time,  to  wit,  for  a  period  of years,  the 

defendant,  0  G,  with  knowledge  that  the  said  J  H  was  then 
and  there  intoxicated,  and  a  person  who  was  in  the  habit  of 
becoming  intoxicated,  at  divers  places  in  said  county,  in  wilfuU 
disregard  of  the  rights  of  the  plaintiffs  herein,  sold  and  gave 
intoxicating  liquors  which  caused  the  intoxication,  in  whole  or 
in  part,  of  the  said  J  H,  and  whereby  he  became  and  then  and 
there  was  intoxicated ;  and  in  consequence  thereof  said  J  PI 
then  and  there  wasted  and  sfiuandered  all  his  means  and  prop- 
erty and  became  greatly  impoverished,  reduced,  degraded  and 
wholly  ruined,  as  well  in  his  mind  and  body  as  in  his  estate 
and  capability  for  work,  and  lost  his  means  of  securing  work 
at  his  said  trade  and  neglected  and  ceased  to  exercise  and  attend 
to  the  duties  of  his  said  trade,  or  in  any  manner  to  provide  a 
proper  livelihood  for  tlie  plaintiffs  herein,  his  said  children. 

And  the  plaintiffs  further  aver  tluit  certain  other  of  said 
defendants,  to  wit,  E  U  and  J  S,  a  corporation,  then  and  there 
owned  and  rented,  leased  or  permitted  the  occupation  of  certain 
saloons  or  dram-shops  on  premises  other  than  those  occupied 
by  the  defendant,  0  G,  aforesaid,  having  knowledge  that  intoxi- 
cating li(|Uors  were  to  be  sold  therein  and  knowingly  permitted 
therein  the  sale  and  gift  by  certain  persons,  to  wit,  their  ten- 
ants, of  intoxicating  licjuors  which  caused  the  intoxication,  in 
whole  or  in  part,  of  the  said  J  11,  as  aforesaid ;  that  at  the  time 
of  the  said  sales  and  gifts  the  said  J  II  was  a  person  in  the 
habit  of  becoming  intoxicated  and  often  was  intoxicated  when 
he  drank  said  intoxicating  liquors  as  aforesaid ;  that  the  premises 
then  and  there  owned  and  rented,  leased  and  permitted  to  be 
used  for  saloons  by  defendants  E  U  and  J  S  were  known  and 
described  as,  to  wit,  (Insert  legal  description)  ;  that  one  L  was 
in  possession  of  the  aforesaid  premises  as  the  tenant  of  said 

defendants  during  the  period  between and , 

and  then  and  there  sold  and  gave  certain  intoxicating  liquors 
that  caused,  in  whole  or  in  part,  the  intoxication  of  J  II,  as 
aforesaid ;  and  that  the  aforesaid  sales  and  gifts  were  made  on 
the  aforesaid  premises  repeatedly,  frequently  and  habitually, 
to  wit,  daily  throughout  said  period. 

And  the  plaintiffs  further  aver  that  because  of  the  said  intox- 
ication of  the  said  J  H,  he,  the  said  J  H,  then  and  there  failed 
to  furnish  and  provide  them  with  sufficient  and  proper  food, 
lodging  and  shelter  and  clothing. 

By  means  of  which  premises  hereinbefore  set  forth  the  plain- 
tiffs and  each  of  them  have  been  and  are  injured  in  their  means 
of  support,  to  wit,  the  services  and  earnings  of  the  said  J  H 
have  been  diminished  and  they  have  been  deprived,  among  other 
things,  of  their  sufficient  and  proper  food,  clothing  and  lodging 
or  shelter.    Wherefore,  etc. 


CASE 


695 


1319  Son's  intoxication,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on ,  and  on,  to 

wit  divers  other  days,  and  at  divers  other  times  between  that  date 
and  the  commencement  of  this  suit,  at  and  within  the  county 

of  . . . ,  in  the  state  of  Illinois,  the  defendants, , 

an(i ,  in  certain  buildings  then  and  there  occupied 

by  them'  'respectively,  did  sell  and  give  intoxicating  liquors  to 

one  ,  and  thereby  caused  the  said 

then  and  there  to  become  habitually  intoxicated,  and  the  said 
^  by  reason  thereof,  was,  during  all  the  times  afore- 
said, habitually  intoxicated.  ^    -,     .         n  xu 
And  the  plaintiff  further  avers  that  at  and  during  all  the 

times  aforesaid,  the  defendants,  and  .  . .  .  ••••••'' 

were  the  owners  of  the  building  and  premises  so  occupied  by  the 

gaid    ,  and  permitted  the  occupation  of  the  said 

building  "and  premises  so  owned  by  them,  by  the  said  .  . ... ... ., 

then  and  there  knowing,  during  all  the  times  aforesaid,  that 
intoxicating  liquors  were  to  be  sold  therein.  ^ 

And  the  plaintiff  avers  that  the  said •  * '/  '  --'^  the  son 

of  the  plaintiff,  and  that  the  plaintiff,  during  all  the  times  afore- 
said was  a  widow,  and  a  poor  person  without  adequate  means 
of  support,  and  that  she  and  her  said  son,  during  all  the  times 
aforesaid,  were  then  and  there  living  together,  and  that  he  was 
of  age,  and  able,  competent  and  willing  to  earn  a  living  for  the 
plaintiff,  and  would  have  done  so  but  for  his  said  habitual 
intoxication,  and  that  by  reason  of  such  intoxication,  caused  as 

aforesaid,  the  said   has  been  broken  down  and 

ruined  physically  and  otherwise,  and  incapacitated  for  earning 
money  for  the  plaintiff's  support,  and  that,  by  reason  of  the 
foregoing  premises,  the  plaintiff  has  been  injured  m  her  means 
of  support,   and  that  she  has  been  compelled  to  support  her 
said  son,  and  during  all  the  times  aforesaid  her  said  son  wasted 
and  squandered  her  means  and  property,  of  the  va  ue  of,  to  wit, 
dollars  by  reason  of  his  said  habitual  intoxication, 
by*  reason  'of  which  premises  the  plaintiff  has  been  injured  in 
her  property. 

2.     And  whereas  also  the  defendants,    .:••••••  •  •  •  •  • :  •  f^^ 

durinc'  all  the  times  aforesaid,  had  the  right  to 
rent  and  permit  the  occupation  of  the  building  so  occupied  by 
the  said  . . . .,  and  did,  during  all  the  times  aforesaid 

knowingly' per'mit  the'  said    ••    to  occupy  the  said 

last  named  building,  for  the  purposes  of  a  saloon,  ^  which  to 
sell  intoxicating  liquors,  then  and  there,  during  all  the  times 
aforesaid,   knowing   that  intoxicating  liquors  were  to  be   sold 

And 'the  plaintiff  avers  that  the  said   . . . . .  • and  the 

plaintiff  we?e  living  together   during   all  the  ^^;^«^^^J«;^j^f/^d' 

«Tirl  thnt  the  said       was  able,  competent  and  willing 

?o  earn  a  living  for  the  plaintiff,  and  would  have  done  so  but 


696  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

for  his  said  habitual  intoxication,  but  that,  because  of  his  said 
habitual  intoxication,  caused  as  aforesaid,  he  was  broken  down 
and  ruined  physically,  during  all  the  times  aforesaid,  and  inca- 
pacitated for  earning  money  for  the  plaintiff's  support;  that 

the  said   ,  during  all  the  times  afori^-said,  and  in 

consequence  of  his  said  habitual  intoxication,  caused  by  the 
defendants,  as  aforesaid,  was  unable  to  earn  a  livelihood  either 
for  the  plaintiff  or  for  himself,  but  was  wholly  dependent  and 
helpless  in  this  regard,  and  for  the  reasons  aforesaid,  and  dur- 
ing all  the  times  aforesaid;  that  the  said   ,  during 

all  the  times  aforesaid,  was  unmarried,  and  had  no  child  or 
children,  and  that  his  father,  the  plaintilf's  husband,  had  died 
prior  to  the  dates  and  times  above  mentioned;  that  the  plaintitf, 
during  all  the  times  aforesaid,  being  re(iuired  by  the  statute 
in  such  case  made  and  provided  to  support  her  said  son  as  a 
poor  person,  as  aforesaid,  did  in  fact  support  her  said  son  during 
all  the  times  aforesaid,  furnishing  him  food,  clothing,  medicine 
ind  other  necessities,  and  that,  in  so  doing,  slie  paid  out  and 
expended  for  the  necessary  support  of  her  said  son  a  large  sum 

of  money,  to   wit,   the  sum  of    dollars;  and  the 

plaintitf  avers  that,  during  all  the  times  aforesaid,  she  was  a 
person  of  limited  means,  owning  her  home,  but  having  no  other 

property  whatsoever  except  the  sum  of   dollars, 

which  she  had  received  as  insurance  on  the  life  of  her  husband, 
and  which  would  have  yielded  her  a  snudl  income  if  she  had 
been  able  to  retain  it,  but  which  she  was  forced  to  pay  out  and 
expend,  and  did  pay  out  and  expend,  in  the  necessary  support 
of  her  said  son  for  the  reason  and  under  the  circumstances 
hereinbefore  stated;  and  the  plaintitf  avers  that  she  had  no  otlier 
means  or  source  of  income,  during  all  the  times  aforesaid,  and 
has  none  now,  except  as  hereinbefore  stated,  and  that  she  is 
impoverished  and  destitute  because  of  the  aforesaid  premises; 
and  so  the  plaintiff  says  that,  by  reason  of  all  the  aforesaid 
premises,  she  has  been  and  is  injured  in  her  means  of  support. 
To  the  damage,  etc. 

LIBEL 

1320  Malice,  proof 

Publications  of  libel  or  other  than  those  counted  upon,  if  bear- 
ing upon  the  question  of  malice,  are  admissible  in  evidence  in 
an  action  for  libel/*  ^ 

1321  Joinder  of  counts 

A  material  alteration  in  the  words  published  make  a  different 
libel,  for  which  a  suit  is  maintainable  or  upon  which  a  count 
may  be  joined. ^^ 

52  Whittemore  v.  Weiss,  33   Mich.  53  Ball  v.  Evening  American  Pub- 

348,  352   (1876).  lishing  Co.,  237  111.  592,  606  (1909). 


CASE  697 

1322  Declaration  requisites,  innuendo 

In  an  action  for  libel  upon  words  which  are  not  libelous  per  se, 
the  declaration  must  bring  out  the  latent  injurious  meaning  of 
the  words  charged  by  proper  innuendo,  unless  the  libelous  mean- 
ing of  the  words  are  so  clear  without  an  innuendo  that  a  man  of 
common  understanding  may  consider  them  such  without  diffi- 
culty or  doubt. 5^  Words  published  or  spoken  which  do  not  refer 
to  the  plaintiff  by  name  should  be  averred  that  they  were  spoken 
or  published  of  and  concerning  the  plaintiff.^^ 

1323  Campaign  contribution  sought  by  official,  Narr. 

For  that  whereas  the  plaintiff  is  and  ever  has  been  a  good 
and  lawful  citizen,  and  until  the  happening  of  the  grievances 
hereinafter  mentioned  has  always  been  considered  an  upright 
and  honorable  man;  and  whereas  the  plaintiff  has  been  since 

the day  of ,  and  now  is  the 

for  the  district  of ,  which  said  office  he  holds  by 

virtue  of  an  appointment  by  the  president  of  the  United  States, 
by  and  with  the  advice  and  consent  of  the  senate  of  the  United 

States;  and  whereas,  as  such    it  is  the  plaintiff's 

duty  to  present  to  the  grand  jury  in  and  for  said  district  of 

all  violations  committed  in  said   district  of  the 

laws  against  crimes  and  misdemeanors  in  force  in  said  district, 
and  to  prosecute  before  the  courts  of  said  district  in  the  name 
of  the  United  States  all  persons  charged  with  the  violation  of 
any  of  said  laws ;  and  whereas,  the  ,  a  body  cor- 
porate, owns  a  race  track  or  course  in  said  district  of , 

whereon  there  are  held  contests  of  speed  between  horses,  which 
said  contests  are  commonly  known  as  horse  races;  and  whereas, 
at  the  time  of  the  grievances  hereinafter  complained  of,  the 
said  body  corporate  was  duly  having  take  place  at  its  race  track 
or  course  aforesaid,  contests,  or  races  aforesaid,  the  same  com- 
mencing the day  of and  continuing 

daily  since  until  the  date  of  the  grievances  hereinafter  com- 
plained, and  advertised  to  continue  until  the day 

of   ,  a  period  of   weeks,  which  said 

period  is  known  as  said  body  corporate 's   ;   and 

whereas  during  such  contests  divers  persons  congregate  in, 
around  and  about  said  race  course  or  track  and  make  bets  or 
lay  wagers  upon  the  result  of  said  races;  and  whereas  if  such 
laying  of  bets  or  making  of  wagers  at  such  race  course  or  track 
constitutes  a  violation  of  any  of  the  laws  in  force  in  the  district 
of ,  it  is  the  duty  of  the  plaintiff  to  present  the  per- 

54  Bourreseau   v.   Detroit   Evening  55  Ball  v.  Evening  American  Pub- 

Journal    Co.,     63     Mich.     425,     429       lishing  Co.,  237  111.  599,  600, 
(1886). 


698  ANNOTATED   FORMS   OF   PLEADING    AND   PRACTICE 

sons  laying  such  bets  or  making  sucli  wagers  to  tiie  grand  jury 
of  the  said  district  for  indictment  for  such  violation  ;  and  where- 
as, the  plaintilf  did,  on,  to  wit, day  of 

present  to  the  grand  jury  one and  charged  that  said 

,  in  taking  wagers  at  said  race  track  or  course, 

was  setting  up  a  gaming  tal)le  contrary  to  tiie  statutes  in  force 
in  said  district  against  setting  u])  gaming  tables,  and  said  grand 
jury,  on,  to  wit,  the  day  of  ,  re- 
turned and  presented  to  the court  of  the  district 

of an  indictment  against  said   , 

charging  him   with  a  violation  of  said  statute,  to  which  said 

indictment  said ,  on,  to  wit,  the day 

of  ,  interposed  a  demurrer,  which  said  demurrer 

was  sustained,  on,  to  wit,  the day  of 

by justice  of  said  court  of  the  dis- 
trict of presiding  in  the  criminal  branch  of  said 

court,  said  justice  holding  that  said  laying  of  bets  or  making 
of  wagers  at  said  race  course  or  track  was  not  a  violation  of 
any  law  in  force  in  said  district;  and  whereas,  the  plaintilf, 
as  such ,  as  aforesaid,  is  now  engaged  in  prosecut- 
ing an  appeal  from  said  decision  of  said  justice  to  the  court  of 
appeals  of  said  district  of for  the  purpose  of  hav- 
ing said  court  determine  whether  sucii  laying  of  bets  or  making 
of  wagers,  at  said  race  track  or  course,  is  unlawful  and  contrary 

to  the  statutes  of  the  district  of   against  crimes 

or  misdemeanors ;  and  whereas,  pending  said  determination  of 
said  question  by  said  court  of  appeals,  the  plaintiff,  conforming 
himself  as  it  is  his  duty  to  do  to  the  law  as  judiciallv  consid- 
ered, as  aforesaid  by  the  justice  of^  the  said 

court  of  the  district  of  ,  has  not 

ordered  the  issuance  of  warrants  for  the  arrest  of,  or  presented 
to  the  grand  jury  of  said  district,  any  persons  for  laying  bets 
or  making  wagers  on  said  contests  at  said  race  course  or  track 
as    aforesaid;    and    whereas    the    said    defendant    aforesaid, 

•••••. >  ^vas,  at  the  time  of  the  grievances  hereinbefore 

mentioned,  and  now  is,  the  pul)lisher  of  a  certain  paper  in  the 

city  of    ,  said  paper   being  called    ; 

and  whereas  one  was.  at  the  time  of  the  griev- 
ances hereinafter  mentioned,  and  still  is,  a  candidate  for  nomi- 
nation by  the party  for  the  office  of ; 

and  whereas,  the  said  defendant,  ,  has  been  pub- 
lishing in  its  said  paper,  the ,  for  many  days  pre- 
vious to  and  since  the  date  of  the  grievances  hereinafter  com- 
plained of,  numerous  articles  or  advertisements  in  support  of 

the  said  candidacy  of  the  said ;  and  whereas,  the 

said   defendant,    ,   in   addition   to   publishing  the 

said  paper,  has  sold  and  circulated  the  same  in  the  city  of 
,  and  in  the  district  of ,  and  through- 
out the  whole  of  the  United  States  of  America,  in  American 
countries  adjacent  thereto,  and  in  foreign  countries ;  and  whereas, 


CASE  699 

notwithstanding  the  fact  that  the  said  plaintiff  has  always  eon- 
ducted  himself  as  an  honest,  upright  citizen  and  has  always 

properly  conducted  himself  in  his  said  office  as   

for  the  district  of   ,  heretofore  mentioned ;  and 

whereas,  the  said  plaintiff  has  heretofore  and  now  is  performing 

the  duties  as  for  the  district  of  in 

an  upright,  honest  and  dignified  manner;  yet,  the  said  defend- 
ant,   ,  well  knowing  the  premises,  but  maliciously, 

wickedly  and  fraudulently  contriving  to  injure  the  plaintiff  in 
his  good  name,  fame  and  credit,  and  to  bring  scorn,  public 
scandal  and  disgrace  upon  him,  and  to  injure  him  in  his  office 

as for  the  district  of ,  aforesaid,  did 

heretofore,  to  wit,  on  the   day  of   , 

compose  and  publish  and  cause  to  be  composed  and  published, 
of  and  concerning  the  said  plaintiff,  and  of  and  concerning  the 
said  office   of  the  said  plaintiff  in  the  said  newspaper  called 

of  ,  date,  to  wit,  ,  the 

same  being  published  in  the  city  of   ,  district  of 

,  and  widely  circulated  among  the  people  of  the  whole 

United  States  and  in  the  countries  aforesaid,  and  particularly 
in  the  said  city  of ,  district  of ,  a  cer- 
tain false,  scandalous,  malicious  and  defamatory  libel  of  the 

tenor  following,  to   wit :     " political  contest. '  * 

(meaning  thereby  the  contest  of  said  for  said 

nomination   for   the   office   of    ,   aforesaid). 

" "    ( meaning  thereby    )   said 

in  his  great  onslaught  on  Mr (meaning  the  said 

)   a  few  days  ago :     '  I  regard  his  candidacy  as  a 

joke.  If  I  had  a  monkey  and  hand  wagon,  1  could  get  up  a 
crowd  anywhere.) 

"This  was  a  fine  expression  for  a  statesman   (meaning  said 

,...),  by  not  wanting  in  dignity  so  much  as  a  justice, 

etc.,  (meaning  thereby  the  honorable ),  who,  with 

(meaning  the  plaintiff),  went  to    

(meaning  the  town  of  ) ,  the  last  

(meaning  the   day  of  )  to  attend  a 

conference  of   (meaning  said    ) 

enemies  and  determine  upon  what  ammunition  was  needed  to 
defeat  him.     The  question  now  is,  where  does  the  money  come. 

from  in  the  contest  against  Mr ?    (meaning  the 

said ) .    IIow  about  the  race  track  ? ' ' 

Meaning  thereby  and  intending  to  convey  and  actually  con- 
veying that  the  said  plaintiff*  entered  into  a  conference  with  the 

said and  other  persons  at  the  town  of , 

at  the  time  mentioned,  for  the  purpose  of  determining  what 
funds  were  necessary,  and  how  same  should  be  raised,  to  be 

used  in  the  campaign  on  behalf  of  said   against 

said   for  the  said  nomination  for  the  office  of 

,  as  aforesaid,  and  that  the  said  plaintiff  was  ob- 
taining money  or  funds  for  uses  in  said  campaign  from  the  said 


700  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

or  persons  engaged   in   iiialung  bets  or  laying 

wagers  at  the  race  track  or  course  aforcsaitl,  or  from  some  otlier 
person  or  persons  interested  in  said  race  track  or  course,  or  in 
laying  of  bets  or  the  making  of  wagers  at  the  said  race  track, 
or  course,  as  aforesaid;  and  meaning  and  intending  to  convey 
and  actually  conveying  that  the  said  plaintiff  was  and  is  cor- 
rupt in  the  conduct  of  his  official  duties  as ,  as 

aforesaid,  in  not  presenting  to  the  grand  jury  and  prosecuting 

before  the  court  of  said   ,  the  person  or  persons 

who  lay  bets  or  make  wagers  upon  the  said  contest  at  tiie  said 
race  track  or  course,  as  aforesaid,  in  consideration  of  contribu- 
tions of  money  for  use  in  said  contest  against  the  said , 

or  some  company,  person  or  persons  who  is  or  are  interested 
in  the  said  race  track  or  course,  or  contest  carried  on  tliereon, 
or  in  the  laying  of  bets  or  in  tiie  making  of  wagers  thereon  upon 
said  contest.  Which  said  false,  seaiuhilous,  malicious  and  d<*- 
famatory  libel  was  composed  and  pu])lislied,  and  was  caused 
and  procured  to  be  composed  and  published  as  aforesaid  by  the 
said  defendant  of  and  concerning  the  said  plaintiff,  said  defend- 
ant meaning  and  intending  thereby  to  charge  that  the  said 
plaintitf  was  a  corrupt,   dishonest  and  unworthy  person,  and 

was  being  influenced  in  the  discharge  of  his  duties  as -  .  . 

by  the  fact  that  some  person  or  persons  or  company,  interested 
in  said  race  track  or  course,  or  in  the  contests  thereon,  or  in 
having  betting,  wagering  and  gambling  promoted  thereon,  was 
contributing  money  to  be  used  against  the  candidacy  of  the  said 

for  the  office  of By  means  of  whicli 

said  false  and  scandalous  libel  the  plaintiff  has  been  and  is  very 
greatly  injured  in  his  good  name,  fame  and  reputation  and 
brought  into  scorn,  scandal,  infamy  and  disgrace  in  so  much 
as  divers  good  and  lawful  citizens  have,  by  reason  of  the  griev- 
ances aforesaid,  suspected  and  believed  and  still  do  suspect  and 
believe  the  plaintiff  to  be  guilty  of  the  acts  set  out  and  charged 
and  intended  to  be  charged  in  said  publication,  and  to  have  been 
guilty  of  bad  and  improper  conduct  so  charged  of  and  concern- 
ing him,  and  have,  by  reason  of  the  committing  of  said  griev- 
ances from  hence  until  now,  believed  the  plaintiff'  to  be  a  dis- 
honest and  unworthy  person  and  to  have  been  guilty  of  the 
wTong  alleged  of  him  as ,  to  the  damage,  etc. 

1324  Financial  responsibility,  Narr.  (Md.) 

For  that  the  plaintiff  is  engaged  in  business  in  the  city  of 

,  in  the  state  of   ,  as  a   maker  and 

dealer  in  machine  and  hand  cut  corks,  and  imported  and  do- 
mestic bottles,  demijohns,  flasks,  bottle  caps,  straw  covers, 
brewer's  and  bottler's  materials  and  supplies,  and  has  been  en- 
gaged in  said  business  in  said  city  upon  his  own  account  ever 
since  the  year That  the  defendants  are  the  dis- 
trict manager  and   assistant   manager   respectively   of  a  firm 


CASE  701 

known  as  company,  which  firm  conducts  a  mer- 
cantile agency  with  branches  throughout  the  United  States,  and 
publishes  and  circulates  among  its  several  thousand  subscribers 
a  certain  book  or  list  of  commercial  ratings  in  which  are  printed 
the  names  and  occupations  of  persons,  firms  and  corporations 
engaged  in  commerce  in  the  several  states  and  cities  of  the 
United  States,  said  names  being  arranged  in  geographical  and 
alphabetical  classification,  which  makes  the  said  book  a  means 
of  ready  references;  that  alongside  the  names  published  in  the 
said  book  or  list  of  commercial  ratings  there  appear  certain 
letters  and  numerals,  which,  according  to  the  key  published  at 
the  beginning  and  at  the  end  of  said  book,  furnish  a  designation 
of  the  financial  worth  and  reliability  as  to  credit  and  character 
of  the  persons  beside  whose  names  the  said  letters  and  figures 
appear ;  and  the  said  firm  of company  in  the  con- 
duct of  its  business  places  copies  of  its  said  book  or  list  of  com- 
mercial ratings  with  all  its  subscribers  throughout  the  world. 
And  the  plaintiff  says  that  after  he  went  into  business  on  his 

own  account  in  the  year ,  as  aforesaid,  he  was  for  many 

years  a  subscriber  to  the  said  book  or  list  of  commercial  ratings, 

and  paid  the  said   company,  through  its  agents, 

the  defendants,  an  annual  sum  of  from to 

dollars  therefor,  and  that  during  the  time  when  the  plaintiff 
was  such  a  subscriber  he  was  rated  in  said  book  or  list  of  com- 
mercial ratings  as  having  a  financial  worth  of  from 

to dollars,  and  as  enjoying  high  credit;  but  that 

after  the  plaintiff  ceased  to  subscribe  for  the  said  book  or  list, 

and  to  pay  the  said  annual  sum  of  from to 

dollars,  although  the  plaintiff's  financial  worth  and  reputation 
for  business  honesty  remained  as  great  as  it  had  been  prior 
thereto,  and  in  fact  increased  by  reason  of  the  plaintiff's  strict 
attention  to  business,  nevertheless,  the  defendants  maliciously 
and    without   just   cause    therefor   procured    the   said    firm    of 

company  in  their  edition  of  the  said  book  or  list 

of  commercial  ratings  published  in  the  month  of , 

19.  .,  to  print  the  plaintiff's  name  without  any  letter  or  figure  of 
any  kind  whatever  standing  alongside  of  it,  the  same  being  what 
is  designated  in  trade  circles  as  a  "blank  rating;"  that  such 
"blank  rating,"  according  to  the  aforesaid  key  published  at  the 
beginning  and  at  the  end  of  said  book,  is  purported  to  be  ex- 
plained by  the  following  words  contained  in  the  said  key  printed 
as  aforesaid,  to  wit,  "The  absence  of  a  rating,  whether  of  capi- 
tal or  credit,  indicates  those  whose  business  and  investments 
render  it  difficult  to  rate  satisfactorily.  We,  therefore,  prefer 
in  justice  to  these  to  give  the  detailed  reports  on  record  at  our 
offices."  But  that  the  common  acceptation  in  the  trade  and 
among  the  many  thousands  of  subscribers  to  the  said  book  or 
list  of  commercial  ratings  throughout  the  United  States  of  such 
a  blank  rating,  even  though  the  same  is  purported  to  be  explained 
and  modified  by  the  said  explanatory  statement  published  in 


702  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

said  key,  is  that  the  person  so  rated  blank  is  worthless  as  to  his 
fiancial  condition,  untrustworthy  as  to  his  character,  and  utterly 
unworthy  of  credit  in  any  commercial  transaction. 

And  the  plaintiff  further  says  that  the  defendants  falsely  and 
maliciously  and  in  order  to  punish  the  plaintiff  for  having  re- 
fused to  continue  to  subscribe  for  the  said  book  or  list  of  com- 
mercial ratings,  and  for  having  refused  to  pay  an  annual  tribute 

of  from   to    dollars  aforesaid,  and 

with  the  malicious  intent  to  injure  the  plaintiff  in  his  trade  or 
calling,  and  to  break  up  and  destroy  the  plaintiff's  business  and 
deprive  him  of  the  means  of  a  livelihood  did,  although  knowing 
full  well  that  the  common  acceptation  in  the  trade  and  among 
the  thousands  of  subscribers  to  the  said  book  or  list  of  com- 
mercial ratings  throughout  the  United  States  of  such  a  blank 
rating  purported  to  be  explained  and  modified  by  the  said  ex- 
planatory statement  published  in  said  key  is  that  the  person 
so  rated  blank  is  worthless  as  to  his  financial  condition,  un- 
trustworthy as  to  his  character,  and  utterly  unworthy  of  credit 
in  any  commercial  transaction,  cause  the  publication  of  the 
plaintiff's  name  in  said  book  or  list  of  commercial  ratings  with 
a  blank  rating  as  aforesaid,  meaning  and  intending  to  publish 
the  plaintiff  as  a  person  who  is  worthless  as  to  his  financial 
condition,  untrustworthy  as  to  his  character,  and  utterly  un- 
worthy of  credit  in  any  commercial  transaction. 

And  the  plaintiff'  further  says  that  the  publication  of  the  said 
libel  has  utterly  destroyed  the  credit  which  the  plaintiff  has 
heretofore  enjoyed,  and  has  caused  many  of  the  persons,  firms 
and  corporations  from  whom  the  plaintiff  has  been  purchasing 
goods  to  demand  immediate  payment  of  the  balance  due  them, 
and  to  refuse  to  sell  the  plaintiff  goods  upon  the  usual  terms  of 
credit  heretofore  allowed,  so  that  the  plaintiff  who  but  for  the 
publication  of  said  libel  would  be  in  a  better  condition  finan- 
cially than  he  has  ever  been,  is  seriously  injured  in  his  business, 
and  has  suffered  and  will  suffer  a  heavy  loss  and  damage  in  the 
prosecution  thereof;   and   that  said   business   has  been   worth 

more  than dollars  per  annum  to  the  plaintiff  for 

a  long  period  of  years. 

And  the  plaintiff  claims dollars. 

1325  Hatred,  contempt  and  ridicule,  action 

An  action  for  libel  is  maintainable  for  a  wrongful  and  malic- 
ious publication  of  words  which  tend  to  bring  a  party  into  public 
hatred,  contempt  or  lidicule,  although  the  same  words,  if  spoken, 
would  not  be  actionable.^^ 

56  Cerveny  v.  Chicago  Daily  News 
Co.,  139  111.  345,  354  (1891). 


CASE  703 

1326  Hatred,  contempt  and  ridicule,  Narr.  (111.) 

For  that  whereas,  before  and  at  the  time  of  the  committing 
by  the  defendant  of  the  several  grievances  hereinafter  mentioned, 
said  plaintiff  was  a  person  of  good  name,  credit  and  reputation 

in  the  county  of ,  and  state  of  Illinois,  and  before 

and  at  the  time  of  the  committing  by  the  defendant  of  the  sev- 
eral grievances  hereinafter  mentioned,  carried  on,  and  still  does 

carry  on,  the  trade  and  business  of  a merchant  in 

the  city  of ,  in  said  county  of ,  and 

was  deservedly  held  in  esteem  by  his  neighbors  and  those  with 

whom  he  had  dealings  in  his  trade  and  business  as  such 

merchant,  ^7hereby  he  acquired  great  gains  in  his  trade  and 
business ;  and  whereas,  before  and  at  the  time  of  the  committing 
by  the  defendant  of  the  several  grievances  hereinafter  mentioned, 
the  plaintiff  was  held  in  high  esteem  by  his  neighbors  and  ac- 
quaintances, as  a  patriotic,  law-abiding  and  law-respecting  citi- 
zen of  said  county,  and  as  to  his  political  views,  tenets  and  opin- 
ions he  was,  and  for  a  long  time  prior  thereto  had  been,  a  mem- 
ber and  adherent  of  the  party,  and  had  obtained 

and  received  the  nomination  as  a  candidate   for  the  office  of 

of  said  county  by  the  regular  and 

general  nominating  convention  of  said   party  of 

the  said  county  of ,  held  in ,  in  said 

county,  on  the day  of , 

.  .  .  . ,  and  thereby  became  and  was  a  candidate  for  said  office 

of   on  the  regular  ticket  of  said   

party  at  the  general  election  held  in  said  county  on  the 

day  of  ,  .... 

And  the  said  plaintiff,  for  a  further  statement  of  extrinsic 
facts  bearing  upon  the  grievances  hereinafter  mentioned  and 

complained  of,  further  avers  that  on  and  prior  to  the 

day  of ,  19 .  • ,  there  was  in  said  county  of , 

and  elsewhere  throughout  the  United  States,  and  ever  since  that 
time  has  been  and  still  is,  a  large  number,  class,  sect  or  party 
of  persons  commonly  called,  known  and  designated  as  "anarch- 
ists ; ' '  that  on  said day  of ,  19 .  . ,  a 

great  riot  occurred  in  the  city  of ,  in  said  county 

of  ,  now  commonly  known  as  the  " 

riot,"  in  which  riot  one .,  a  policeman  of  said  city 

of   ,  was,  as  was  then  and  ever  since  that  time 

has  been  and  still  is  commonly  understood  and  believed,  killed 
by  a  dynamite  bomb  thrown  by  some  person  into  the  midst 

of  a  company  of  policemen  of  the  said  city  of   

then  and  there  being,  and  as  a  result  of  the  explosion  of  said 
bomb,  and  the  firing  of  pistol  shots  then  immediately  following, 

a  large  number,  to  wit,   other  of  said  policemen, 

were  killed,  and  a  large  number,  to  wit,  of  said 

policemen,  were  wounded;  that  it  was  then  and  ever  since  that 
time,  has  been  and  still  is,  commonly  believed  in  said  city  of 


704  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

,  and  in  said  county  of  ,  and  else- 
where, that  said  riot  and  murder  were  immediately  and  remotely 
instigated,  caused  and  brought  about  by  said  class  and  party 
of  persons  then  and  ever  since  then  and  now  generally  known 
and  designated  in  said  city  and  county  as  anarchists,  and  by 
certain  leaders  and  prominent  and  representative  men  in  said 
class  or  party  of  persons  called  anarchists,  as  aforesaid;  and 
it  was  then,  and  ever  since  that  time  has  been  and  is  now,  com- 
monly understood  and  believed  in  the  city  and  county  aforesaid, 
that  said  riot  and  murder  were  the  natural  result  of  the  doc- 
trines and  teachings  of  said  class,  party  or  sect  called  anarchists, 
as  aforesaid,  and  that  the  doctrines,  opinions,  beliefs,  teachings 
and  tenets  of  said  class,  party  or  sect  called  anarchists,  as  afore- 
said, and  of  the  persons  composing  said  class,  party  or  sect,  is, 
that  the  law  and  order  of  society  then,  and  ever  since  then  and 
now,  existing,  should  be  overthrown  by  revolution  and  force. 

And  the  plaintiff  further  avers  that  after  said  riot  and  murder 

of  the  prominent  leaders  of  said  class,  party  or  sect  called 

anarchists,  to  wit,    ,  were  indicted  by  the  grand 

jury  of  said county  for  murder,  to  wit,  the  murder 

aforesaid,  and  thereupon  such  proceedings  were  afterward  had 

in  the  criminal  court  of  said  county  that  all  of  said 

persons  above  named  were  adjudged  guilty  of  murder,  and  in 
pursuance  of  the   judgment   of  said   criminal  court  the  said 

suffered  the  penalty  of  death  by  hanging,  and  in 

pursuance  of  said  judgment  the  said  were  com- 
mitted to  the  penitentiary  of  the  state  of  Illinois. 

And  the  plaintiff  further  avers  that  said  riot  has  been,  ever 
since  its  occurrence,  commonly  known  in  said  city  and  county 

as  the  riot  of  the  anarchists ;  and  that  said  trial  of  said 

persons  was  at  the  time  thereof,  and  ever  since  that  time  has 
been  and  still  is,  commonly  known  in  said  city  and  county  as 

the  trial  of  the  anarchists;  and  the  hanging  of  said 

persons  above  named  was  then,  and  ever  since  that  time  has  been 
and  now  is,  in  like  manner  commonly  known  and  spoken  of  as 
the  hanging  of  the  anarchists. 

And  the  plaintiff  further  avers,  that  the  name,  terra  and 
designation  of  anarchist  ever  since  said  riot,  trial  and  hanging, 
has  been  and  still  is  commonly  understood  and  regarded  in 
said  city  and  county,  and  elsewhere,  as  descriptive  of  one  who 
holds  and  entertains  opinions  and  doctrines  opposed  to  the  main- 
tenance of  law  and  order  and  subversive  of  government,  and 
similar  in  that  regard  to  the  opinions  and  doctrines  entertained 
and  acted  upon,  as  aforesaid,  by  said  

And  the  plaintiff  further  avers,  that  ever  since  said  riot,  trial 
and  hanging,  the  name  and  designation  of  anarchist  applied  to 
any  person  has  tended,  and  still  tends,  to  expose  such  persons 
to  public  hatred,  contempt  and  financial  injury ;  yet,  the  defend- 
ant, well  knowing  the  premises,  but  contriving  and  wrongfully 
and  maliciously  intending  to  injure  and  destroy  the  good  name 


CASE 


705 


and  reputation  of  the  plaintiff  as  a  law-abiding  and  order-loving 
citizen  of  the  community  in  which  he  lives,  to  wit,  m  the  city 
and  county  aforesaid,  and  to  injure  him  in  his  said  business, 
and  to  bring  him  into  public  hatred,  contempt,  ridicule  and 

financial  injury,  on  the  day  of ,  19.  .,  in  the  county 

aforesaid,  wickedlv  and  maliciously  did  compose  and  publish, 
and  did  cause  to  be  composed  and  published,  of  and  concerning 
the  plaintiff,  and  of  and  concerning  the  plaintiff  as  a  candidate 

for  said  office  of  ,  in  a  certain  newspaper  called 

" ,"   whereof   the   said   defendant  was   then   and 

there  tlie  proprietor,  a  certain  false,  scandalous,  malicious  and 
defamatory  libel,  containing,  among  other  things,  the  false, 
scandalous,  malicious,  defamatory  and  libelous  matter  following, 

of  and  concerning  the  plaintiff,  that  is  to  say :  " -^ 

(meaning  the  plaintiff)  is  an  anarchist,  hot-headed  and  fiery. 

' '  It  was  said  yesterday  that  a  committee  of  had 

gone   to  see    (meaning  the   plaintiff),   and   was 

received  by  him  (meaning  the  plaintiff)  in  a  room  with  pic- 
tures of   (meaning  the  said   above 

mentioned)   and  the  other  executed  anarchists,"   (meaning  the 

gaid   who  were  hung  for  murder  as  aforesaid.) 

"This  did  not  satisfy  the ,  and  they  were  imprud- 
ent enough  to  complain  about    ,"    (meaning  the 

plaintiff),  meaning  and  intending  thereby  to  charge  the  plain- 
tiff with  being  a  member  of  said  class,  party  or  sect  of  persons 
called  anarchists,  and  that  the  plaintiff  entertained  and  held 
to  the  aforesaid  doctrines,  views  and  tenets  of  said  class,  party 
or  sect  called  anarchists,  and  that  the  said  plaintiff  held  to  the 
teachings  of  said  executed  anarchists  with  regard  to  law  and 
government,  and  that  the  plaintiff  was  in  accord  with  the  doc- 
trines and  cherished  the  memory  of  said  executed  revolutionists 
and  murderers ,  and  that  said  plaintiff  was  a  per- 
son who  entertained  opinions  and  doctrines  opposed  to  the  main- 
tenance of  law  and  order  and  subversive  of  government,  and  m 
favor  of  the  overthrow  of  society  as  then  existing,  by  revolution 
and  force. 

2.  And  also  for  that  whereas,  afterwards,  to  wit,  on  the 
day  of  ,  19 . . ,  in  the  county  afore- 
said, the  said  defendant,  well  knowing  the  premises  aforesaid, 
and  further  contriving  and  wrongfully  and  maliciously  intend- 
ing to  injure  and  destroy  the  good  name  and  reputation  of  the 
plaintiff  as  a  law-abiding  citizen  in  the  community  m  which 

he  resided,  to  wit,  in  the  city  of  and  county  of 

aforesaid,  did  compose  and  publish,  and  did  cause 

to  be  composed  and  published,  of  and  concerning  the  plaintiff, 
and  of  and  concerning  the  result  of  said  election,  and  of  and 
concerning  the  plaintiff'  as  candidate  at  said  election,  m  said 

newspaper  called  " ,"  whereof  the  said  defendant 

was  there  and  then  ttie  proprietor,  a  certain  other  false,  scanda- 
lous, malicious  and  defamatory  libel,  containing,  among  other 


706  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

things,  the  false,  scandalous,  malicious,  defamatory  and  libelous 
matter  following,  of  and  concerning  the  plaintiff,  as  aforesaid, 

that  is  to  say:     "But    (meaning'   tlie   plaintilf) 

was  voted  against  because  he  is  an  anarchist.     This  is  disclosed 

by  the  returns  from  the   wards.     Here  are  tiiree 

wards.    Their  vote  indicates  somewliat  the  temper 

of  the  party  (meaning  the party)  towards 

(meaning  the  plaintitf).     (Insert  returns)     These  figures  show 

that ran  nearly votes  ahead  of 

(meaning  the  plaintiff)  in  these  wards."  ^Meaning  and  intend- 
ing to  charge  that  said  plaintiff  was  then,  to  wit,  at  the  time 
of  and  before  said  election,  a  member  and  adiierent  of  said 
party,  sect  or  class  of  persons  then  commonly  known  and  desig- 
nated as  anarchists,  as  aforesaid,  and  that  he,  the  said  plain- 
tiff, was  defeated  at  said  election,  and  ran  behind  the  other 
candidates  on  said  ticket  at  said  election,  because  he,  the  said 
plaintiff,  was  an  anarchist ;  and  meaning  and  intending  to  charge 
that  the  plaintiff  was  a  person  who  entertained  opinions  and 
doctrines  opposed  to  the  maintenance  of  law  and  order  and  sub- 
versive of  government,  and  in  favor  of  the  overthrow  of  society 
as  then  existing,  by  revolution  and  force. 

By  means  of  the  committing  of  said  several  grievances  by  the 
defendant,  the  plaintiff  has  been  and  is  greatly  injured  in  his 
good  name,  credit  and  reputation,  and  has  been  brought  into 
public  scandal  and  disgrace ;  and  also  by  means  of  the  premises, 
the  plaintiff"  has  been  and  is  otherwise  injured,  to  the  damage  of 

the  plaintiff  of dollars,  and  therefore  he  brings  suit, 

etc." 

1327  Minister's  conduct,  Nan*. 

For  that  whereas  the  plaintiff  is  and  ever  has  been  a  true, 
honorable,  pure  and  moral  person  faithful  and  honest  in  his 
profession  and  business  and  upright  in  his  conduct,  and  is  and 
always  has  been  wholly  free  from  false,  dishonorable,  impure, 
immoral  purposes  and  acts,  or  any  offense,  or  oft'enses  of  like 
character,  and  until  the  committing  of  the  grievance  hereinafter 
complained  of,  was  reputed,  and  deservedly  so,  to  be  a  person 
of  good  name  and  reputation  in  the  United  States  and  foreign 
countries,  and  was  in  good  standing  and  repute  in  the  ministry 
of  the  Gospel  in  which  calling  or  profession  he  was  engaged  and 
in  business  of  writing,  editing  and  publishing  religious  papers, 
pamphlets  and  books,  which  said  religious  papers,  pamphlets 
and  books  have  a  large  circulation  and  sale  in  the  United  States 
and  foreign  countries  and  from  which  sales  an  income  was  and 
is  derived  with  certain  divers  emoluments  and  gains  with  which 
to  carry  on  the  work  of  the  plaintiff. 

57  Cerveny  v.  Chicago  Daily  News 
Co.,   139  111.  345,  351. 


CASE  707 

Yet  the  defendant,  well  knowing  the  premises,  but  contriv- 
ing to  deprive  the  plaintiff  of  his  good  name,  reputation  and 
professional  and  business  standing,  and  to  bring  him  into  scan- 
dal and  disrepute  among  his  friends,  neighbors,  associates, 
acquaintances,  patrons,  customers,  and  with  the  public,  and  to 
injure  him  in  his  said  calling,  profession,  occupation,  business 
and  pursuit,  and  to  harass  and  discredit,  impoverish  and  dis- 
grace him  and  bring  him  to  ruin,  did  heretofore,  to  w4t,  in  the 

month  of  on  or  about  the   . day  of 

,  of  said  month  falsely  and  maliciously  compose 

and  publish  of  and  concerning  the  plaintiff,  in  a  certain  news- 
paper published  by  the  defendant  in  the  city  of  , 

to  \nt,  the    which  newspaper  then  had  a  large 

circulation  throughout   the    ,   and   the   states  of 

>   1   '   

and  elsewhere  throughout  the  United  States  and  foreign  coun- 
tries, the  following  false,  scandalous,  defamatory  and  malicious 
libel,  to  wit:  (Set  out  article). 

And  the  plaintitf  says  that  the  statements  and  charges  con- 
tained in  said  publication  against  him  and  the  inferences  thai 
the  plaintiff  (State  specifically  the  particular  inferences  that 
the  libelous  matter  is  susceptible  of)  and  that  the  statements 
therein  set  forth  and  any  and  all  of  them,  or  the  inferences 
therein  contained  of  false,  unseemly,  dishonorable,  impure, 
immoral,  or  criminal  purposes,  acts,  or  conduct,  or  any  offense 
or  offenses  of  like  character  are  absolutely  false ;  that  the  plain- 
tiff did  not  use  language  attributed  therein  to  him  nor  any  lan- 
guage of  like  or  similar  import;  that  the  plaintiff  was  not  and 
is  not  in  any  wise  guilty  of  the  said  offenses  so  laid  to  his 
charge  or  sought  to  be  imputed  to  him  in  and  by  the  said  false, 
scandalous  and  defamatory  publication;  and  that  the  said  libel 
by  reason  of  its  publication  in  the  said  newspaper  was  circulated 

and  published  widely  throughout  the   ,  the  states 

of    ,    ,    ,   and   elsewhere 

throughout  the  United  States  and  foreign  countries;  and  that 
by  reason  of  said  publication  the  plaintiff  has  been  greatly 
hurt  and  injured  in  his  good  name,  fame  and  reputation,  and 
has  been  brought  into  disgrace  and  disrepute  among  divers 
neighbors,  friends  and  associates,  acquaintances,  patrons,  cus- 
tomers and  among  divers  other  persons,  and  before  the  public 
generally,  and  has  been  greatly  injured  in  his  said  calling,  pro- 
fession and  business  as  a  minister  of  the  Gospel,  in  wTiting, 
editing  and  publishing  the  religious  papers,  pamphlets,  and 
books,  and  his  influence  has  been  thereby  greatly  impaired ;  and 
that  by  reason  of  the  committing  of  the  grievance  aforesaid 
divers  good  and  worthy  persons  have  suspected  and  believed 
and  still  do  suspect  and^  believe  the  plaintiff  to  have  been  guilty 
of  false,  improper,  impure,  immoral,  and  criminal  acts  and  pur- 
poses and  bad  and  improper  conduct  so  published  of  and  concern- 
ing him,  and  have  by  reason  thereof,  since  wholly  refused  to  have 


708  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

any  transaction,  acquaintance,  association  or  business  trans- 
action with  the  plaintiff,  as  they  otherwise  would  have  had,  to 
the  damage,  etc. 

1328  Pleadings,  libelous  matter,  action 

Alleged  libelous  matter  in  a  pleading  is  not  actionable,  when 
the  matter  is  not  wholly  irrelevant  and  impertinent  to  the  con- 
troversy between  the  parties.^* 

1329  Pleadings,  libelous  matter,  Narr.  (111.) 

For  that  whereas  the  plaintiff  now  is  a  true,  honest  and 
faithful  citizen  of  the  state  of  Illinois,  and  as  such  has  always 
behaved  and  conducted  himsell",  and  until  the  committing  of 
the  grievances  by  the  said  defendant  as  hereinafter  mentioned, 
was  always  reputed,  esteemed  and  accepted  l)y  and  among  all 
his  neighbors  and  other  wortliy  citiztiis  of  tliis  and  other  states, 
to  whom  he  was  in  any  wise  known,  to  be  a  person  of  good 

name  and  credit,  to  wit,  at  the  said  county  of   

By  means  of  which  said  premises,  the  said  plaintiff  before  the 
committing  of  the  said  grievances  by  the  said  defendant  as 
hereinafter  mentioned  had  deservedly  obtained  the  pood  opinion 
and  credit  of  all  his  neighbors  and  other  citizens  to  whom  he 

was  in  any  wise  known,  to  wit,  at  the  county  of   

aforesaid.  And  for  that  whereas  the  plaintiff  before  and  at 
the  time  of  the  committing  of  the  grievances  by  the  said  defend- 
ant, as  hereinafter  mentioned,  was  and  from  thence  hitherto 
has  been  and  now  is  the  president  of  S,  a  corporation  organized 
and  doing  business  under  and  by  virtue  of  the  laws  of  the  state 

of    And  before  and  at   the  time  aforesaid  the 

said  corporation  exercised  and  carried  on,  and  does  now  exer- 
cise and  carry  on  the  business  of  manufacturing , 

at,  to  wit,  the  county  of and  state  of 

And  plaintiff'  had  conducted  the  said  business  of  said  corpora- 
tion with  punctuality  in  its  dealings,  keeping  its  engagements, 
paying  its  debts,  and  in  such  a  business-like  manner  as  to  place 
said  corporation  among  the  stable  and  prosperous  corporations 
at,  to  wit,  the  county  aforesaid ;  and  by  reason  of  the  premises 
the  said  corporation  was  doing  a  large  and  successful  business, 
and  the  plaintiff,  as  president  thereof,  was  thereby  daily  and 
honestly  acquiring  great  gains  and  emoluments  in  said  trade. 
And    the    defendant   from    thence    hitherto    was,    and    is   now 

engaged  in  the business  at,  to  wit,  the  said  county 

of   ,  and  was  and  is  now  a  business  rival  of  said 

corporation  and  evilly  disposed  toward  said  plaintiff.  And 
before  the  committing  of  the  grievances  by  the  said  defendant, 

58  Ash  V.   Zwietusch,   159  111,  45.5 
(1896). 


CASE  709 

as  hereinafter  mentioned,  plaintiff  had  filed  in  the 

court  of  said county  and  state  aforesaid,  on  the 

chancery  side  thereof,  a  certain  bill,  known  as  number 

of  the  general  numbers  of  cases  in  said  court,  wherein  the  plain- 
tiff herein  was  complainant  and  the  defendant  herein  was 
defendant,  in  words  following,  to  wit:  (Set  out  bill  in  haec 
verba). 

And  to  said  bill  the  defendant  in  this  suit  made  and  filed 
in  that  cause  his  certain  answer  in  words  following,  to  wit: 
(Set  forth  answer  in  full). 

Yet,  the  defendant  well  knowing  the  good  character  of  plaintiff, 
but  wickedly  and  maliciously  intending  to  injure  the  good  name, 
reputation  and  credit  of  plaintiff  and  to  injure  the  growing 
trade  and  reputation  of  said  corporation  and  to  bring  plaintiff 
and  said  corporation  into  public  scandal,  infamy  and  disgrace 
among  the  inhabitants  of  said  county,  and  to  cause  it  to  be 
suspected  that  plaintiff  had  been  and  was  guilty  of  embezzle- 
ment, and  for  the  sole  and  express  purpose  of  gratifying  defend- 
ant's  malice  and  ill-will  towards  plaintiff  and  to  destroy  com- 
petition in  said trade,  well  knowing  that  the  state- 
ments made  were  wholly  impertinent  and  irrelevant  to  the 
material  issue  in  said  cause,  and  entirely  foreign  and  unneces- 
sary as  a  defense  thereto,  and  that  there  Avas  no  reasonable  or 
probable  cause  for  asserting  to  be  true  the  said  words,  on,  to 

wit,  the day  of ,  ,  at,  to  wit, 

the  said  county  of   ,  did  va-ite,  publish  and  file, 

and  cause  to  be  written,  published  and  filed,  in  his  said  answer, 
and  made  a  part  of  the  public  records  of  said  cause,  a  false, 
scandalous,  malicious  and  defamatory  libel,  of  and  concerning  the 

plaintiff,  to  wit :  "That  he  (meaning )  collected  about 

$ belonging  to  defendant   (meaning   )    and 

had  appropriated  the  same  to  his  own  use   (meaning    

use)  without  the  consent  or  knowledge  of  the  defendant 

(meaning  said  )  ;"  and  the  defendant  in  addi- 
tion to  said  false  and  defamatory  words  last  aforesaid,  and  in 
the  same  answer,  further  and  wantonly,  on,  to  wit,  the  day  and 
at,  to  wit,  the  place  last  aforesaid,  wrote,  published  and  filed, 
and  caused  to  be  written,  published  and  filed  in  said  cause  the 
following  false,  malicious  and  immaterial  matter,  of  and  con- 
cerning the  plaintiff,  to  wit,  "until  the  discovery  by  the  defend- 
ant (meaning )  of  the  embezzlement  by  complain- 
ant (meaning )  of  a  large  sum  of  money."     And 

the  plaintiff"  avers  that  by  the  publishing  and  filing  of  said 
words  in  said  answer  the  defendant  meant  and  intended  falsely 
and  maliciously  to  charge  the  plaintiff  with  the  crime  of  em- 
bezzlement and  to  cause  it  to  be  suspected  by  the  associates  of 
plaintiff  that  he  had  been  and  was  guilty  of  the  crime  of  em- 
bezzlement and  was  subject  to  the  penalty  made  and  provided 
by  the  laws  of  the  state  of  Illinois  therefor.  And  the  plaintiff 
further  avers  that   the  matters  above  alleged  are  false  and 


710  ANNOTATED    FORMS   OF    l'I,KAI)IN(J    AND    I'HACTICE 

defamatory,  and  wholly  irrcK'vaiit  and  iiiipropcr,  iiiipcrtinent 
and  immaterial  to  tiie  issue  between  the  parlies  to  said  bill,  and 
were  written,  published  and  filed  without  any  reasonable  or 
probable  cause;  all  of  which  was  known  by  the  defendant  at 
the  time  of  filing  the  same,  and  with  the  express  intent  on  his 
part  to  defame  the  plaintiff.  By  means  of  the  committing  of 
which  said  grievances  by  the  defendant,  the  plaintiff  has  been 
and  is  injured  in  his  good  name,  credit  and  reputation  and 
brought  to  public  scandal  and  ilisgrace,  and  has  been  and  is 
shunned  and  avoided  by  divers  persons;  and  has  been  and  is 
otherwise  injured  in  his  said  business,  to  the  damage,  etc.-'"''* 

1330  Privileged  communications,  proof 

In  an  action  for  libel  arising  from  privileged  communications 
the  plaintiff  must  prove  the  falsity  of  the  contents  of  the  com- 
munication and  express  malice  in  its  publication,  without  either 
of  which  there  is  no  cause  of  action.  In  an  action  for  libel  which 
is  not  privileged,  the  plaintiff  is  not  bound  to  prove  the  falsity 
of  the  libel.«« 

MALICIOUS   PROSECUTION 

1331  Nature  and  scope 

In  an  action  for  malicious  prosecution,  the  gist  of  the  action 
is  the  concurrence  of  malice  and  want  of  probable  cause.  The 
want  of  either  element  is  fatal  to  the  action." i  Unless  a  person 
has  acted  maliciously  and  without  probable  cause,  he  is  not 
liable  for  the  bringing  of  a  civil  or  criminal  action  and  for  the 
wrongful  seizure  of  property  thereunder,  if  the  court  in  which 
the  suit  was  brought  had  jurisdiction  of  the  subject  matter  and 
the  parties."-  IMalice  may  be  inferred  from  a  want  of  probable 
cause ;  but  the  absence  of  probable  cause  cannot  be  inferred  from 
malice."^  A  prosecution  instituted  with  any  other  motive  than 
that  of  bringing  a  guilty  party  to  justice  is  malicious  as  a  mat- 
ter of  law."^    No  action  for  malicious  prosecution  is  maintainable 


59  A  tlemurrcr  ^Yas  sustained  to  the  111.  289,  294  (1870);  :McElroy  v. 
foregoing  declaration  on  the  ground  Catholic  Press  Co.,  254  111.  290,  293 
that    the    pleadings   which    were    set  (1912). 

out  in  the  declaration   disclosed   no  6- Hill  Co.  v.  Contractors'  Supply 

cause  of  action.     Ash  v.  Zwietusch,  &  Equipment  Co.,  249  111.  304,  310 

supra.  (1911). 

60  Edwards  v.  Chandler,  14  Mich.  '^^  McElroy  v.  Catholic  Press  Co., 
471,   475    (1866).  254  111.   294. 

«i  Jacks  V.  Stimpson,  13  111.  701,  «*  McElroy  v.  Catholic  Press  Co., 

703    (1852);    Spaids  v.  Barrett,   57  254  111.  293. 


CASE  711 

until  the  suit  or  the  prosecution  upon  which  the  action  is  to  be 
based  has  legally  terminated.^  ^ 

1332  Declaration  requisites  generally 

A  declaration  for  malicious  prosecution  must  aver  that  the 
former  suit  or  proceeding  was  terminated  and  that  such  termina- 
tion was  in  plaintiff's  favor.  But  a  defective  averment  of  the 
termination  of  the  first  proceeding  is  cured  by  verdict.^*^  The 
w'ords  "without  any  reasonable  or  probable  cause"  are  not  in- 
dispensable if  language  is  used  which  has  a  similar  meaning.*^' 
In  an  action  against  a  private  individual  for  false  imprisonment 
the  averment  of  want  of  reasonable  or  probable  cause  is  unneces- 
sary ;  but  if  such  an  averment  is  made,  it  will  be  treated  as  sur- 
plusage.*^® The  declaration  must  particularly  specify  special 
damages,  if  such  damages  are  sought  to  be  recovered.*^^ 

1333  Abuse  of  process,  action 

Liability  for  an  unwarranted  use  of  legal  process  depends 
upon  whether  the  process  complained  of  is  void  or  merely  void- 
able. A  total  absence  of  evidence  as  to  any  essential  fact  re- 
quired to  be  proved  to  a  court  of  special  and  limited  jurisdic- 
tion, as  the  ground  of  issuing  process,  renders  the  process  abso- 
lutely void,  but  when  the  proof  before  the  court  has  the  legal 
tendency,  to  make  out  a  proper  case,  in  all  its  parts,  for  issuing 
the  process,  the  process  will  be  valid  until  it  is  set  aside  by  a 
direct  proceeding  for  that  purpose,  although  it  may  be  based 
upon  slight  and  inconclusive  proof." "^ 

1334  Abuse  of  process,  declaration,  requisites 

A  declaration  based  upon  a  malicious  abuse  of  process  must 
show  that  legal  process  was  misused  after  it  had  issued.'^ ^ 


65  Feazle  v.  Simpson,  1  Scam.  30  co  Home  v.  Sullivan,  83  111.  30,  31 

(1832).  (1876). 

60  Feazle      v.      Simpson,      supra;  to  Miller  v.   Brinkerhoff,   4  Denio 

Spaids  V.  Barrett,  57  111.   294.  118,  120    (X.   Y.   1847)  ;   Johnson  v. 

07  Spaids  V.  Barrett,  57  111.  295.  Maxon,  23  Mich.  129,  136  (1871). 

c«  Enright  v.  Gibson,  219  111.  550,  7i  Keithley  v.  Stevens,  238  111.  199, 

556    (1906).  202   (1909). 


712  ANNOTATED   FORMS  OF   PLEADING   AND    I'KACTICE 

1335  Attachment,  action 

An  action  on  the  case  is  maintainable  for  maliciously  suing 
out  an  attachment  and  seizing  the  goods  of  a  debtor.'- 

1336  Attachment,  Narr.  (111.) 

For  that  whereas,  at  and  before  the  time  of  the  committing 
of  the  grievances  hereinafter  set  fortli,  plaiutitf,  in  said  county, 
was  carrying  on  and  was  engaged  and  had  been   for  a  long 

time  engaged  in  the  business  of    ,   and  owned  a 

great  stock  of  merchandise,  material,  tools,  and  implements, 
pertaining  to  such  business,  and  conducted  and  carried  on  his 
business  honestly,  and  was  deservedly  held  in  good  credit  by 
the  public  in  general,  and  his  neighbors,  and  customers,  and 
patrons  in  particular,  whereby,  he  daily  actjuired  great  gains 
and  profits;  yet  the  defendants,  well  knowing  the  premises,  l)ut 
wickedly  contriving  and  maliciously  intending  to  injure  the  said 
plaintiff  in  his  said  business,  good  name,  and  fame,  and  credit 

did,  to  wit,  on  the day  of , , 

cause  to  be  made  and  filed  a  certain  paper,  commonly  known 
as  an  affidavit  in  attachment,  before  a  justice  of  the  peace  in 

and  for  the  county  of   ,  and  state  of  Illinois,  to 

wit,  before   ,  es(iuire,  and  then  and  there  caused 

to  be  issued  out  of  and  obtained  from  the  said  justice  of  the 
peace,  a  paper  commonly  known  as  a  writ  of  attachment,  com- 
manding any   constable   in  the   county   of    ,   and 

state  aforesaid,  to  attach  so  much  of  the  estate,  real  or  personal, 
of  the  said  above  named  plaintiff  to  be  found  in  his  county,  as 
should  be  of  value,  sufficient  to  satisfy  the  debt  named  in  the 

said  writ  amounting  to dollars,  and 

cents   ($ ),  and  costs  alleged  to  be  owing  to  the  said 

above  named  defendants,  etc.,  against  this  plaintiff,  and  deliv- 
ered the  same  to  the  said  constable  of  said  county ;  whereby, 

the  said  defendants,    ,  affirmed  and  charged  that 

this  plaint itf  had  departed  from  this  state  with  the  intention 
of  having  his  effects  removed  from  this  state,  and  was  about 
to  remove  his  property  from  this  state  to  the  injury  of  the  said 
defendants;  and  this  plaintiff'  in  fact  says  that  he  had  not  then 
and  there  departed  from  this  state  with  the  intention  of  hav- 
ing his  effects  removed  from  this  state,  nor  was  he  about  to 
remove  his  property  from  this  state,  to  the  injury  of  the  said 
defendants,  as  above  stated;  and  he  in  fact  says  that  the  said 

,  and  his  aforesaid  co-defendant,  and  each  of  them, 

did  not  then  and  there  at  and  before  and  within  the  time  of 
the  making  and  filing  of  the  said  affidavit,  and  of  the  obtaining 

72Spaids  V.  Barrett,  57  111.  293; 
Thomas  v.  Hinsdale,  78  111.  259 
(1875). 


CASE  713 

of  the  said  writ,  and  of  the  deliver}^  of  it  to  the  said  constable, 
have  probable  cause  to  believe  that  this  plaintiff  had  departed 
from  this  state  with  the  intention  of  having  his  effects  removed 
from  this  state,  nor  was  about  to  remove  his  property  from  this 
state ;  and  so  this  plaintiff  avers,  and  charges  that  the  said  de- 
fendants did  maliciously,  wrongfully  and  without  probable 
cause,  cause  to  be  made  and  filed  the  said  affidavit,  and  to  be 
obtained  the  said  writ  and  the  same  to  be  delivered  to  the  said 
constable,  and  by  him  levied. 

And  plaintiff,  in  fact  says,  that  thereupon,  to  wit,  on  the 

day  of , ,  the  said  defendants 

caused  the  said  writ  to  be  levied,  and  the  said  constable  did 
levy  said  writ  upon  the  goods  and  chattels,  effects,  furniture, 
tools,  implements,  merchandise,  and  materials  of  this  plaintiff, 
and  did  cause  said  constable  to  enter  upon  the  business  prem- 
ises of  this  plaintiff,  and  did  cause  him  to  possess  himself 
thereof,  and  he  did  possess  himself  thereof,  and  they  did  cause 
him  to  eject  this  plaintiff'  therefrom,  and  he  did  eject  him  there- 
from ;  all  of  which  acts  and  wrongs  he  did  in  pursuance  of  the 
said  writ,  and  he  did  thus  and  tliereby  deprive  this  plaintiff' 
of  his  personal  property  of  great  value,  and  did  damage  other 
of  his  personal  property  to  a  great  amount,  and  did  deprive 
this  plaintiff  of  his  place  of  business,  and  greatly  injure  his 
good  name,  and  credit,  and  destroy  the  good  will  in  and  to 
the  said  business,  and  did  thence  until  hitherto  deprive  him  of 
great  gains  and  profits  to  accrue  out  of  his  said  business,  and 
did  utterly  prevent  him  continuing  in  his  said  business,  and 
did  cause  the  same  to  be  wholly  lost  to  him,  and  did  cause  him 
to  pay  out  large  sums  of  money,  and  to  incur  large  debts  in 
procuring  the  said  attachment  to  be  released,  and  in  recover- 
ing and  attempting  to  recover  the  said  goods,  and  chattels  taken 
under  said  writ. 

And  the  plaintiff,  in  fact  says  that  afterwards,  to  wit,  on  the 

day  of   ,    ,  by  judgment  on 

that  day  rendered,  by  the  said  justice  of  the  peace,  the  issues 
upon  the  said  affidavit  were  found  in  favor  of  this  plaintiff, 
and  by  the  final  order  of  said  justice  of  the  peace,  duly  made 
and  entered  on  that  date,  which  order  thence,  hitherto  has 
remained  in  full  force  and  effect,  the  said  writ  of  attachment 
was  then  quashed,  and  wholly  held  for  naught. 

By  means  of  which  said  several  premises,  and  by  the  acts 
and  wrongs  aforesaid,  and  by  other  wrongs  and  grievances  in 
that  behalf  then  and  there  by  said  defendants  caused  to  be 
wantonly,  oppressively,  willfully,  vexatiously,  and  maliciously 
done,   this  plaintiff'  sustained  damages   direct  and  exemplary 

in  the  sum  of   dollars    ($ ).     Therefore 

he  brings  this  suit,  etc. 


714  ANNOTATED    FOKMS   Ob'    I'LEADING    AND    PUACTICE 

1337  False  imprisonment,  action 

The  assignor  of  a  chose  in  action  is  not  liable  for  the  wrong^ful 
issuance  of  a  capias  at  the  instance  of  the  assignee  of  the  right 
of  action,  without  the  assignor's  special  sanction  and  autliority 
tlierefor.^^  An  action  of  trespass  on  the  ease,  and  not  trespass, 
will  lie  for  an  act  done  under  legal  process  regularly  issued 
from  a  court,  or  by  an  otKicer  of  competent  jurisdiction,  wiien 
there  is  malice  or  want  of  probable  causeJ^  Imprisonment  under 
legal  process  of  a  court  having  jurisdiction  of  the  subject  matter 
cannot  be  made  the  basis  of  an  action  for  false  imprisonment 
against  a  judge  or  magistrate  who  has  issued  process,  the  officer 
who  has  served  it  and  the  party  at  whose  instance  the  process 
was  issued,  wiien  the  court  or  magistrate  had  merely  erred  in  his 
judgment  as  to  the  suliticiency  of  an  affidavit  upon  wliich  the 
process  was  basedJ^ 

1338  False  imprisonment,  Narr.  (111.) 

For  that  whereas,  the  plaintifT  now  is  a  good  and  honest 
citizen  of  this  state,  and  as  such  has  always  beliaved  .  .  .  .sel.  .  ., 
and  has  not  ever  been  guilty,  or  until  the  time  of  the  commit- 
ting of  the  several  olfenses  and  grievances  by  the  defendant.  ., 
as  hereinafter  mentioned,  been  suspected  to  have  been  guilty 
of  larceny,  or  any  other  such  crime,  by  means  whereof  the 
plaintiff,  before  the  committing  of  the  said  grievances  by 
defendant.,  had  deservedly  obtained  the  good  oi)inion  and 
credit  of  all  h..  neighbors  and  other  worthy  citizens  of  the 
state;  yet,  the  defendant.,  well  knowing  the  premises,  but 
contriving  and  maliciously  intending  to  injure  the  plaintiff.  . 
in  h..  aforesaid  gooil  name  and  fame,  and  credit  and  to  bring 
h..  into  public  scandal,  infamy  and  disgrace,  and  to  cause  the 
plaintiff.  .  to  be  imprisoned  for  a  long  time,  and  thereby  to 
impoverish,  oppress  and  ruin  h.  .,  did  on  or  about  the  ........ 

day  of   ill  the  town  of   ,  in 

the  county  and  state  aforesaid  go  and  appear,  before  one 

then  and  there  being  one  of  the  justices  of  the  peace  in 

and  for  the  county  aforesaid,  and  then  and  there,  before  the 

said ,  so  being  such  justice  as  aforesaid,  falsely 

and  maliciously,  and  Avilhout  any  reasonable  or  probable  cause 
whatsoever  charge  the  plaintiff.  .  with  having  feloniously  stolen 
certain  articles  of  personal  property  described  in  the  aforesaid 

'■"'Park  V.  Toledo,  Canada  South-  228  (1875);  Paulus  v.  Grobben,  104 

em  &  Detroit  R.  Co.,  41  Mich.  3.52,  Mich.  42,  49  (1855). 

355  (1879).  TsFeld  v.  Loftis,  240  111.  105,  107 

7-iBlalock  V.  Randall,  76  111.  224,  (1909). 


CASE  715 

complaint  then  and  there  made  by  the  defendant. .  as  follows, 
to  wit :  (Describe  goods),  the  property  of  the  defendant. .  and 
upon  such  charge  the  defendant .  .  falsely  and  maliciously  and 
without  anv  reasonable  or  probable  cause  whatsoever,  caused 
and  procured  the  said so  being  such  justice  afore- 
said, to  make  and  grant  his  certain  warrant,  under  his  hand  and 
seal 'for  the  apprehending  and  taking  of  the  plaintiff. .,  and  for 

bringing  the  plaintiff.  .  before  him  the  said or  some 

other  justice  of  the  peace  in  and  for  the  said  county,  to  be 
dealt  with  according  to  law  for  the  said  supposed  offense ;  and 
the  defendant. .,  under  and  by  virtue  of  the  said  warrant,  after- 
wards, to  wit,  on  the day  of ,  aforesaid, 

there  w^rongfully  and  unjustly,  and  without  any  reasonable  or 
probable  cause  whatsoever,  caused  and  procured  the  plaintiff. . 

to  be  arrested  by  .  .h body,  and  to  be  imprisoned,  and  kept 

in  prison  for  the  space  of hours  then  next  following, 

and  until  ..h the  defendant.,   afterwards,  to  wit,  on  or 

about  the day  of  there  falsely  and  mali- 
ciously and  without  any  reasonable  or  probable  cause  whatso- 
ever, through  and  by  virtue  of  said  warrant  caused  and  pro- 
cured the  house  and  domicile  of  this  plaintiff. .  to  be  entered 
by  an  officer  of  the  law  and  by  him  searched,  and  divers  of 

.  .h goods  and  property  wore  then  and  there  taken  by  said 

officer,  and  earrii-d  away  and  brought  before  the  said 

justice  as  aforesaid. 

And  the  defendant.,    afterwards,   to   wit,   on  or  about  the 

day  of ,  without  any  reasonal)le  or 

probable  cause  whatsoever  caused  and   procured  the  plaintiff 

to  be  carried  in  custody  before  the  said 

so  being  such  justice  as  aforesaid,  to  be  examined  before 

the  said  justice,  touching  the  said  supposed  offense;  whereupon, 
the  plaintiff  then  and  there  prayed  a  change  of  venue  from 
the  said justice  aforesaid  to  the  next  nearest  jus- 
tice of  the  peace  in  the  town  and  county  aforesaid;  and  the 
defendant .  .  afterwards  to  wit,  at  the  time  aforesaid  then 
falsely  and  maliciously,  and  without  any  reasonable  or  probable 
cause  whatsoever  caused  and  procured  the  plaintiff  to  be  car- 
ried in  custody  before a  justice  of  the  peace  in  and  for 

the  county  aforesaid,  he,  the  said  justice  being  the  next  nearest 
justice  of  the  peace  in  the  town  and  county  aforesaid  to  be 
examined  before  the  said justice  aforesaid,  touch- 
ing and  concerning  the  said  supposed  offense;  which  said  jus- 
tice having  heard  and  considered  all  that  the  defendant., 
could  say  or  allege  against  the  plaintiff'  touching  and  con- 
cerning the  said  supposed  offense  and  all  that  the  defendant.  . 
could  sav  or  allege  touching  and  concerning  the  divers  goods 
and  property  so  taken  as  aforesaid,  then  and  there  adjudged 
and  determined  that  the  plaintiff  was  not  guilty  of  the 
said  supposed  offense,  and  then  and  there  caused  the  plaintiff 
to  be  discharged  out  of  custody,  fully  acquitted  and  discharged 


71G  AN'N'OT.VTED    FORMS   ()F    I-LI:AIjIN(J    AND    PRACTirE 

of  the  said  siippiKSfHl  onVnsc,  ami  llitii  ami  llicic  ;:ii.jinlK''<l  and 
dettsniiiiied  tliat  tlic  divi-rs  ^'oods  and  i)io])t'rty  so  takfU  as  uloif- 
said  belonged  to  tlie  idaintill",  anil  the  said  diViis  goods  anil 
property  were  by  the  said  justice  ordered  restored  to  tiie  plain- 
till";  and  the  defendant.  .  ha.  .  not  fiirliier  proseeuted  .  .h.  . .  . 
said  complaint,  but  ha....  abandoned  the  same  and  the  said 
complaint,  and  prosecution  are  wholly  ended  and  determined. 
By  means  of  which  premises,  the  plaintilT  has  been  and  is 
greatly  injured  in  ..h....  creilit  antl  rei)utation,  and  brougiit 
into  public  scandal,  infamy  and  disgrace,  with  and  among  all 
.  .h.  . .  .  neighboi's  and  other  worthy  eitizens  of  this  state;  and 
divers  of  those  neighbors  and  citi/ens,  to  whom  ..h....  inno- 
cence in  the  j)remises  was  unknown,  have  on  occasion  of  the 
premises,  suspected  and  believed,  and  still  do  suspect  and  be- 
lieve that  the  plaintilV  has  been  and  is  guilty  of  larceny  ;  and  also 
the  plaintilY  has,  by  means  of  the  premises  sulVered  great  anx- 
iety anil  pain  of  body  and  mind,  and  has  bi en  obliged  to  hiy 
out,  and  has  laid  out  ilivei-s  large  sums  of  money,  amounting  to 
d(tliars,  in  and  about  the  pro<-uring  of  .  .h.  .  .  .  dis- 
charge from  the  said  imprisonment,  and  the  defending  of 
. . .  .sel. . . .  in  the  premises  aJid  the  manifestations  of  .  .h. . .  . 
innocence  in  that  behalf;  and  has  been  gi^'atly  hindereil  and 
prevented  by  reason  of  the  premises,  from  following  and  trans- 
acting .  .h.  .  .  .  alTairs  and  business,  for  the  space  of ; 

and  also,  by  reason  of  the  i)remises  the  plaint ilV  has  been  and 
is  otherwise  greatly  injured  in  ..h....  ereilit  and  circum- 
stances.    To  the  damage,  etc. 

(Maryland) 

For  that  heretofore,   to   wit,  on   or  about   the    

day  of 1!>.  .,  the  defendant  fal.sely  and 

maliciously  and  v.ithout  rcasonal)le  cause  whatsoever,  eau.sed 
and  procured  the  arrest  of  the  plaintiif,  upon  the  charge  of 
having  feloniously  stolen,  taken  and  carried  awny  certain  house- 
hold furniture,   to  wit;   (Describe   property)    the  proi)erty  of 

and   caused  and   procured    police 

otRcer  of  the  city  of to  take  the  said 

to  the police  station,  where  she  was  searched  and 

locked  up  and  was  otherwise  humiliated;  that  on  the  said  day 
the  defendant  did  cause  her,  the  said  j)laintilf  to  be  taken  before 

the    police  station   in   the  city  of    , 

and  thereafter,  after  a  hearing  before  the  pre- 
siding magistrate  at  the    police  station  she,  the 

said  plaiutitf  was  committed  for  the  action  of  the  criminal  court 
of and  there  charged  the  plaintiff  with  having  com- 
mitted the  aforesaid  crime;  that  said  plaintiff  was  tried  before 

his  honor of  the  criminal  court  of ;  that 

said  charge  was  in  effect  false,  and  the  plaintiff,  upon  the  trial 
thereof  by  the  criminal  court,  was  acquitted  and  discharged; 


717 

CASE 


™^Sut,on;  that  the  ?'»'";■«  ;™^,,«,\  "Ji;^  ^ra^^n^^ffi'-^ehl— 

suspicion,  and  ti  at  tn*   *'"^y\    ,    ,    .  .,     plaintiff  was  made 
the  reputation  ot  the  phuntiff;  and  that  ^^^^  P'^"''     ,    i^rosecu- 
ill    and  has  suffered  other  injuries  as  a  result  ot  such  piosecu 
lion  as  aforesaid.    Wherefore,  etc. 

(Virginia) 
For  this   to  ^vit,  that  the  said  plaintiff  was  known  to  all  the 

"7  for',"h  Zt     he  'saU     u!a.n     nt  lontriving  and   maliciously 
set   torth,   but  tne  saia   u  ..  .     ,  •    ..j^j^.^saia  crood  name, 

™„  hi,.,  te;.»t.„  ..  ..1,  ..  .!»  ;;  ;■  ,;;^'  „'/,„H„|,a 

to  be  imprisoned  and  de.amed  m  pmon    or  =,  l-^^Xvlng, 

time,  to  wit,  for  the  spaoe  ot da\ .  ttien  nej^' 

Ind  until  the  said  defendant  "f;--;^-  ',»,-k,::,:td  mail'- 


718  ANNOTATED   FORMS  OF   PLEADING    AND   PRACTICE 

committed  by  the  said  justice  to  imprisonment  for  a  further 
examination;  the  said  justice,  having  heard  and  considered 
all  that  the  said  defendant  and  its  duly  authorized  agents  c<>uhl 
say,  allege  or  prove  against  the  said  plaintiff,  committed  the  said 

plaintiff  to  the  grand  jury  of  the    court  of  the 

city  of   ,  and  the  plaintiff  was  again  imprisoned 

for  a  long  space  of  time,  to  wit,  for  the  space  of 

days;   thereafter   the  said   defendant  and   its  duly  authoriz<'(l 

agents  appeared  before  the  grand  jury  on  the day 

of ,  where  an  indictment  was  brought  against  the 

said  plaintiff,  charging  him  with  having  feloniously  stolon  (De- 
scribe   property)     from    the    said    defendant    of    the    value    of 

dollars,  and  the  said  defendant  then  and  there, 

wrongfully,  unjustly,  wantonly  and  maliciously  and  without 
any  reasonable  or  probable  cause  whatsoever,  again  caused  the 
said  plaintiff  to  be  arrested  by  his  body  and  to  be  imprisoned 

for  a  long  space  of  time,  to  \nt,  for  the  space  of 

days,  until  he  could  be  bailed  for  his  appearance  in  said  court 
at  the  trial  of  said  indictment.     That  the  said  plaintiff  on  a 

certain  date,  to  wit,  the  day  of in 

the  court  in  the  city  of  ,  was  ar- 
raigned and  tried  on  the  said  indictment,  which,  without  proper 
cause,  was  instigated  by  the  defendant  through  its  duly  author- 
ized agents,  and  the  said  plaintiff  was  adjudged  and  determined 

by  the  said court  and  its  jury  in  said  trial  to  be 

"not  guilty"  of  the  supposed  offense,  and  the  said  plaintiff  was 
then  and  there  discharged  out  of  the  custody  and  fully  ac«iuitted 
of  the  said  supposed  off'ense ;  and  the  prosecution  of  the  same 
has  fully  and  finally  ended.  By  means  of  said  premises  the  said 
plaintiff  has  been  greatly  injured  in  his  health  and  reputation 

and  put  to  great  inconvenience  and  expense,  to  wit, 

dollars,  in  defending  himself  in  said  prosecution,  and  has  been 
disgraced  and  injured,  to  the  damage,  etc. 

(West  Virginia) 

For  this,  to  wit,  that  whereas  the  said  plaintiff  is  a  good, 
true,  just  and  honest  citizen  of  this  state  and  as  such  hath 
always  behaved  and  conducted  himself,  and  until  the  commit- 
ting of  the  grievances  by  the  said  defendant,  as  hereinafter  men- 
tioned, was  always  reputed,  esteemed  and  accepted  by  and 
amongst  all  his  neighbors,  and  other  good  and  worthy  citizens 
of  this  state,  to  whom  he  was  known,  to  be  a  person  of  good 
name,  fame  and  credit;  and  whereas,  also,  the  said  plaintiff 
hath  never  been  guilty,  nor  until  the  time  of  the  committing 
of  the  said  grievances  by  the  said  defendant,  as  hereinafter 
mentioned,  been  suspected  to  have  been  guilty  of  stealing  or 
larceny,  or  of  any  other  crime  as  hereinafter  stated  to  have  been 
charged  upon  or  imputed  to  him  by  the  said  defendant;  by 
means  whereof  the  said  plaintiff  before  the  committing  of  the 


CASE  719 

grievances  by  the  said  defendant,  as  hereinafter  mentioned,  had 
deservedly  obtained  the  good  opinion  and  credit  of  all  his  neigh- 
bors and  other  good  and  worthy  citizens  of  this  state,  to  whom 
he  was  known  to  be  an  honest  and  upright  man,  and  would 
neither  wrong,  harm  nor  steal  from  his  f ellowman ;  and  whereas 
the  said  defendant,  contriving  and  maliciously  intending  to  in- 
jure the  said  plaintiif  in  his  aforesaid  good  name,  fame  and 
credit  and  to  bring  him  into  public  scandal,  infamy  and  dis- 
grace, and  to  cause  the  said  plaintiff  to  be  imprisoned  for  a 
long  space  of  time,  and  thereby  to  impoverish,  suppress  and 

wholly  ruin  him,  heretofore,  to  wit,  on  the day  of 

,  in  the  year  19 . . ,  at  the  county  of , 

appeared  before  one    ,  then  and  there  being  one 

of  the  justices  of  the  peace  in  and  for  the  said  county,  and  a 
relative  of  the  said  plaintiff,  and  then  and  there  before  the  said 
justice  of  the  peace  falsely  and  maliciously,  Avithout  any  reason- 
able or  probable  cause  whatsoever,  charge  the  said  plaintiff 
v.-ith  having  taken,  stolen  and  carried  away,  a  certain  paper 

writing  of  the  value  of  $ ,  the  property  of  the  defendant, 

and  upon  such  charge,  falsely  and  maliciously,  and  without  any 
reasonable  or  probable  cause  whatsoever,  caused  and  procured 

the  said    ,  so  being  such  justice  as  aforesaid,  to 

make  and  grant  his  certain  warrant,  in  due  form  of  law,  for  the 
apprehending  and  taking  of  the  said  plaintiff,  and  for  bringing 

the  said  plaintiff  before  the  said   ,  or  some  other 

justice  of  the  peace  in  and  for  the  said  county  of , 

to  be  dealt  with  according  to  law  for  the  said  supposed  offense. 
And  the  said  defendant,  under  and  by  virtue  of  the  said 
warrant,  afterwards,  to  wit,  on  the  day  and  year  aforesaid, 
wrongfully  and  unjustly,  and  without  any  reasonable  cause 
whatsoever,  caused  the  said  plaintiff  to  be  arrested  by  his  body 
and  to  be  imprisoned  and  restrained  of  his  liberty  for  a  long 

space  of  time,  to  wit,  for  a  space  of   days  then 

next  following,  and  until  the  said  defendant,   afterwards,   to 

wit,  on  the    day  of   ,   19 .  . ,  at  the 

county  of   ,  falsely  and  maliciously,  and  \nthout 

any  reasonable  or  probable  cause  whatsoever,  caused  the  said 

plaintiff'  to  be  carried  in  custody  before  the  said , 

so  being  such  justice  as  aforesaid,  and  to  be  committed  and  bailed 
by  the  said  justice,  for  a  further  examination,  and  to  be  kept 
and  held  and  deprived  of  his  liberty  on  his  recognizance  given 
to  said  justice  for  a  long  space  of  time,  to  wit,  for  the  space 

of  days  then  next  following,  and  until  the  said 

defendant  afterwards,  to  wit,  on  the day  of , 

19..,  falsely  and  maliciously  and  without  any  reasonable 
or  probable  cause  whatsoever,  caused  the  said  plaintiff  to  be 

carried   in  custody  before  one    ,  then  and  there 

being  a  certain  other  justice  of  the  peace  in  and  for  the  said 

county  of ,  to  be  examined  before  the  said  justice 

touching  the  said  supposed  crime. 


720  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

"Which  said  last  mentioned  justice,  having  heard  and  consid- 
ered all  that  the  said  defendant  could  say,  allege  or  prove  against 
the  said  defendant,  touching  and  concerning  the  said  supposed 
offense,  tiien  and  there,  to  wit,  on  the  day  and  year  last  afore- 
said, at  the  county  aforesaid,  adjudged  and  detertnined  that 
the  said  plaintiff  was  not  guilty  of  tlie  said  sup[)osed  offense, 
and  tiicn  and  there  caused  the  said  plaintiff  to  he  dischargeil 
out  of  custody,  released  from  his  said  bond  and  recognizance, 
fully  aecjuitted  of  said  supposed  offense;  and  the  said  defend- 
ant hath  not  further  prosecuted  his  said  complaint,  hut  hath 
deserted  and  abandoned  the  same,  and  the  said  complaint  and 
prosecution  are  now  fully  ended. 

2  And  for  this  also  that  the  said  defendant,  further  contriv- 
ing and  maliciously  and  wickedly  intending  as  aforesaid  the 
said  i)hiintiff  to  defame,  imi)0verish,  oppress  and  ruin,  hereto- 
fore, to  wit,  on  tlie  day  of ,  in  the  year 

19..,  at  the  county  of    ,   falsely  and  maliciously 

and  without  any  reasonable  or  probable  cause  whatsoever, 
charged  the  said  plaintiff  with  having  committed  a  certain 
oliense,  punishable  by  law,  to  wit,  a  misdemeanor;  and  upon  the 
last  mentioned  charge  the  said  defendant  then  and  there,   to 

v.it,  on  the day  of ,  19.  .,  at  the  county 

afoi-esaid,  falsely  and  maliciously,  caused  and  procured  the  said 
plaintiff  to  be  arrested  by  his  body  and  be  imprisoned  and  de- 
prived of  his  liberty  for  a  long  space  of  time,  to  wit,  for  the 

space  of    days  then  next  following,  and  at  the 

expiration  of  which  said  time  the  said  plaintiff  was  fully  ac- 
quitted and  duly  discharged  of  the  said  last  mentioned  offens;'. 

By  means  of  whicii  several  premises  the  said  plaintitY  hath 
been  and  is  greatly  injured  in  his  said  credit  and  reputation 
and  brought  into  public  scandal,  infamy  and  disgrace,  with  an<l 
amongst  all  his  neighbors,  and  other  good  and  worthy  citizens 
of  this  state  ;  and  divers  of  those  neighbors  and  citizens,  to  whom 
his  innocence  in  the  premises  was  unknown  have,  by  reason  of 
the  premises,  suspected  and  believed,  and  still  do  suspect  and 
believe  that  the  said  plaintiff"  hath  been  and  is  guilty  of  stealing 
and  larceny;  and  also,  by  reason  of  the  premises,  the  said  plain- 
till'  hath  suffered  great  anxiety  and  pain  of  body  and  mind, 
and  hath  been  obliged  to  lay  out  and  expend,  and  hath  neces- 
sarily laid  out  and  expended  divers  sums  of  money,  in  the  whole 

amounting  to  a  large  sum,  to  wit,  the  sum  of dollars,  in 

and  about  the  procuring  of  his  discharge  from  the  said  imprison- 
ment, and  the  defending  of  himself  in  the  premises,  and  the 
manifestation  of  his  innocence  in  that  behalf;  and  hath  been 
greatly  hindered,  by  reason  of  the  premises  from  following  and 
transacting  his  lawful  and  necessary  affairs  and  business  for  a 

long  space  of  time,  to  wit,  for  the  space  of days ; 

and  also  by  reason  and  means  of  the  said  premises,  hath  been 
and  is  greatly  injured  and  damnified  in  his  credit  and  circum- 
stances.    To  the  damage,  etc. 


CASE  721 

1339  Injunction,  action 

No  action  is  maintainable  for  maliciously  suing  out  a  writ  of 
injunction  where  an  injunction  bond  has  been  given;  because 
the  defendant  in  the  injunction  suit  is  fully  indemnified  by  the 
injunction  bondJ* 

1340  Replevin,  Narr.  (Mich.) 

For  that  whereas,  before  and  at  the  time  of  the  committing 
of  the  grievances  next  hereinafter  mentioned,  and  for  a  long 
space  of  time  then  next  preceding,  said  plaintiff  has  been  wholly 
engaged  in  the  study  of  music,  thereby  preparing  and  fitting 
herself  for  the  business,  occupation  and  profession  of  a  teacher 
of  music,  expecting  and  intending  thereby  to  follow  said  pro- 
fession for  a  livelihood,  to  wit,  at  the of 

in  said  county,  and  in  pursuing  and  carrying  on  such  study  and 
occupation  successfully  it  became  and  was  necessary  for  said 
plaintiff  to  have  a  pianoforte  to  use  in  and  about  the  daily  prac- 
tice of  said  study ;  and  to  that  end  and  purpose,  the  said  plain- 
tiff became  and  was  possessed,  in  her  own  right,  of  one  pianoforte 
of  great  value,  to  wit,  dollars.  And  whereas  be- 
fore and  up  to,  the  time  of  the  committing  of  the  grievances 
hereinafter  mentioned  said  plaintiff  was  using  said  pianoforte 
in  her  daily  study  and  practice,  and  thereby  deriving  great 
profit  and  advantage  from  its  use,  and  in  consequence  thereof 
was  becoming  more  expert  and  proficient  in  her  said  study  and 
in  preparing  iiersclf,  as  aforesaid,  for  the  profession  of  a  teacher 
of  music.  Yet,  the  said  defendant  contriving  and  maliciously 
intending,  wrongfully  and  unjustly  to  injure  the  said  plaintiff, 

in  said  behalf  heretofore,  to  wit,  on  the  day  of 

, . ,   at  the    of    in   said 

county,  came  to  the  house  and  home  of  said  plaintiff,  bringing 
with  iiim  divers  other  persons  who  were  acting  under  his  advice 
and  command  and  for  him,  and  then  and  there  maliciously 
contriving  and  intending  to  injure  the  said  plaintiff  gave  out 
and  stated  that  he   had   a   writ  -of  replevin   in   favor  of  one 

and  against   ,  that  by  said  writ  he 

had  authority  to  take  said  pianoforte  hereinbefore  mentioned, 
the  property  of  said  plaintitt  and  in  her  possession.  That  said 
defendant,  then  and  there  well  knew  that  the  said  property  was 
not  the  property  of  either  of  the  parties  to  said  writ  of  replevin, 
and  that  neither  of  them  was  entitled  to  the  possession  of  the 
same,  but  that  it  was  the  property  of  the  said  plaintiff  and  in 
her  possession,  and  that  he  had  no  legal  right  to  seize  said  piano- 
forte on  said  writ.     But  that  the  said  defendant  maliciously 

TO  Gorton  v.  Brown,  27  111.  489 
(1862);  Spaids  v.  Barrett,  57  111. 
293. 


722  ANNOTATED    FORMS   OF    PLEADING    AND    I'RATTirE 

contriving  and  intending  to  injure  said  plaintiiV  in  this  regard 
then  and  there,  aided  and  assisted  by  said  divers  persons  in  his 
employ  and  under  his  eonmiand,  took  and  carried  away  said 
pianoforte  by  force  from  the  possession  of  said  phiintitT  by 
threats  of  arrest  and  imprisonment  if  she  resisted  or  in  any  way 
hindereil  him  from  taking  the  same;  and  lie,  the  said  defendant, 
afterwards,  to  wit,  on  the  same  day,  illegally  antl  wrongfully 
converted  the  said  pianoforte  to  his  own  use  and  wholly  refused 
to  return  the  same  to  the  plaintift',  and  the  same  has  been  en- 
tirely lost  to  her  and  she  has  been  deprived  wholly  of  its  use 
and  deprived  of  the  opportunity  of  further  pursuing  her  said 
studies  and  preparing  herself  for  a  teacher  of  music,  to  the 
damage,  etc. 


1341  Malpractice  as  physician,  Narr.  (Md.) 

For  that,  heretofore,  to  wit,  on  or  about ,  19.  ., 

the   defendant,   being   a   practicing   physician    in    

city,  and  slate  of  Mai-yland,  with  hii-ge  and  extemled  experience, 

and  being  the  family  i)hysician  of  the  said    ,  the 

father  of  the  infant  plaintitf,  and  the  said  defendant  holding 
himself  out  as  a  competent  and  skillful  physician  and  one  who 
would   carefully   attend   patients  who   might   employ   him,   the 

said  defendant  was  sent  for  on  or  about  said day 

of ,  19,  .,  to  call  at  the  home  of  the  said , 

in city,  to  attend  the  wife  of  the  said 

who  was  about  to  give  birth  to  a  child,  and  the  said  defendant 

rcspontled  to  said  call  and  came  to  the  home  of  the  siiid 

and  made  an  examination  of  his  wife,  and  at  or  about 

o'clock,  midnight,  the  said  defendant  undertook,  as  a  physician 

the  delivery  of  said  child,  and  after  about    hours  of 

labor  with  the  use  of  forct>ps  the  infant  daughter, , 

was  brought  into  the  world  on  the day  of , 

19.  .  ;  and  the  j)laintilY  further  says  that  it  was  and  became  the 
duty  of  the  defendant  to  make  a  careful  examination  of  the 
mother  of  the  infant  plaintitf  before  her  birth,  and  to  make 
such  examination  as  was  in  common  use  among  skilled  physi- 
cians, dealing  with  the  birth  of  children,  and  to  n.se  and  exer- 
cise reasonable  care  and  skill  in  ju-eparing  the  mother  of  said 
infant  plaintitf  for  tiie  delivery  of  said  child  and  also  to  use 
and  exercise  reasonable  care  and  skill  in  the  delivery  of  said 
infant  plaintiff  at  said  birth,  so  that  said  infant  plaintiff  might 
be  brought  into  the  world  free  from  the  negligence  and  nnskill- 
fulness  of  said  defendant ;  and  the  plaintiff  further  says  that  the 
said  defendant  was  negligent  and  unskillful  and  failed  to  exer- 
cise and  use  reasonable  care  and  skill  in  the  delivery  of  said 
infant  plaintitf  in  that,  by  the  use  of  forceps  he  caused  an  in- 
denture to  be  made  in  the  forehead  of  said  infant  plaintiff,  and 
immediately  after  the  delivery  of  said  infant  plaintiff  and  on 


CASE  ' "^ 


several  occasions  thereafter  said  indenture  was  called  to  the 
attent  on  of  said  defendant,  and  he  was  called  and  reqi  es  ed 
to  treat  the  same,  but  the  said  defendant  failed  and  neglected 
o  diagnose  said  trouble,  and  failed  and  neglected  to  treat  said 
ndentlre  so  caused  by 'his  negligent  and  unskillful  treatment 
nnd  his  failure  to  use  and  exercise  reasonable  care  and  ski  1  in 
Uie  Mvery  0?  said  infant  plaintiff,  saying  that  it  was  nothing 
and  would  not  in  anyway  affect  the  infant  plaintiff,  and  that 
aUhou^h  the  said  dei^endant  visited  the  home  ot  the  mother  of 
?he  infant  plaintiff  for  some  time  after  her  birth,  and  examined 
saM  infant  plaintiff  and  treated  said  infant  plaintiff,  he  tailed 
and  neglected  to  make  any  effort  to  treat    remove  or  elumnate 

a' d  "denture  upon  the  ^^ ''^S°'tw'b."t  uiS  u^nd 
though  often  re<iuested  to  do  so,  and  that  by  the  unskilltul  ana 
Proper  treatment  of  the  infant  plaintiff,  during  her  birth,  and 
ZeXr   and  the  faihire  of  the  defendant  to  use  and  exercise 
e    "n^^^^^^^^^  ca^e'Lnd  skUl  at  the  birth  of  ^  ^^^^^ 
nnrl  in  the  treatment  of  said  mtant  plaintiff  alter  her  t)irtii, 
and  the  neglecTdefault  and  failure  of  the  defendant  to  diagnose 
?  eat    rem^^^e  or  eliminate  the  indenture  upon  the  torehead  of 
Le  inf' nt  plaintiff,  caused  by  the  defendant  as  atoresji  d    and 
lidi  he  was  often  re.,uested  to  do,  and  ^vhleh^vas  often  ca  led 
to  his  attention,  tlie  said  infant  became  unable  to  ^^alk  or  talK 
Ir  use  her  m.ntal  fa.-ulti<.s.  so  that  slie  has  become  an  imbecile, 
?heTrop.r  dev.lopnu.nt  of  h.r  nu.ntal  faculties  having  been  ar- 
rested  although  said  infant  plaintitt  has  since  the  ••••;•••••  '  * 

day  of  ,  19-  •,  ^v»»^'"  ^^^i^^  indenture  in  her  forehead. 

caused  as'  aVoresaid,'  was  operated  upon   and  removed  by  Dr. 

of   the  hospital   ot    

c.i,y'i,;.;on>esonu.what  i',nprov..l,  and  said  infant  Pl^;";;^^^"";^ 
matiTial  biMU-fit  since  said  operation,  and  whi.dl  condition  ho« 
ever  of  said  inlant  plaintiir  was  caus.-,l  an.l  is  now  exis  ing  l.y 
r,u  oT  ;U  neglil^nce  and  "-kUlinl.iesa  of  *■,,,,  ant 
iMid  Ids  failure  to  use  and  exercise  reasonolile  care  am  skill  m 
tte  delivm  ot-  the  infant  plaintiff  at  her  birth    and  the  negh- 

?ni-tior':xr^-i^^^^^^^^^^^ 

in   'trcidinranJca^inVfor  said  indenture  u^^^^^ 

'^dU d  to  le  attention  of  «iid  defendant  and  he  was  requested 
o^real  the  same,  and  that  by  reason  of  the  failure  -^  -  an^^^ 
default  of  the  said  defendant  to  use  and  ^-^^^^V^^  .7'^^^  ^'i*^';^ 
eare  and  skill  in  the  delivery  of  said  infant^  P^'"  "^\,,lfnture 
birth  and  in  diagnosing,  treating  and  caring  for  the  indenture 
in  tie  forehead  of  the  infant  plaintiff  although  often  requested 
so  0  do  and  caused  as  aforesaid  by  the  negligence,  default  and 
ill  i  ulness  of  the  defendant  at  the  birth  of  said  -fan  Pla- 
tiff  said  infant  plaintiff  has  become  and  is  unable  to  ^^alk,  talk 
or  i^e  her  mental  faculties  as  othenvise  she  would  have  been 


724  ANNOTATED    FOKMS   OF    I'LLAUING    AND    I'KACTICE 

able  to  do  had  it  not  been  for  the  negligence  and  unskill fulness 
of  the  defendant,  and  his  failure  to  use  and  excreise  reasonable 
care  and  skill  at  the  birth  of  said  infant  plaint  ill  and  in  iliag- 
nosing,  caring  for  and  treating  said  indenture  on  the  forehead 
of  said  infant  plaintitf,  which  he  was  re(|uested  to  do,  wherefore 
said  infant  i)laintitr  lias  become  and  is  seriously  ami  permanently 
injured. 

And  the  j)laintifT  brings  this  suit  and  claims    

doUara. 

Next  friend's  authority 

To  the  honorable  the  judije  of  said  court : 

I   hereby  authorize  and   direct  tlie   use  of  my   name  in  this 
suit,  as  the  next  friend  of 


1342  Nuisance,  private;  action,  notice,  damages 

An  action  on  the  case  is  maintainable  for  a  private  nuisance 
consisting  of  smells,  smoke,  etc.,  caused  by  the  manufacture  of 
gases  and  rendering  premises  uncomfortable  for  habitation. '^^ 
The  party  aggrieved  has  the  right,  at  common  law,  to  peaceably 
abate  a  private  nuisance."**  A  party  who  sustains  danuiges  by 
temporary  nuisance  may  have  successive  actions  for  their  recov- 
ery until  the  nuisance  is  abated.'' **  A  grantee  or  lessee  who  comes 
into  possession  of  lands  with  an  existing  nuisance  upon  them 
cannot  l)e  held  liable  tor  an  action  for  tlamages  until  he  has  been 
first  notified  to  remove  the  same;  but  tiiis  rule  lias  no  applica- 
tion to  railroads  which  have  been  constructed  after  the  Illinois 
Railroad  act  of  1891  went  into  effect.^''  The  unsuccessful  at- 
tempt to  remove  or  remedy  a  nuisance  does  not  entitle  a  party 
who  is  liable  for  the  continuation  of  the  nuisance  to  further 
notice  to  remove  it  before  bringing  an  action  therefor.*^  In 
case  of  nuisance  a  party  is  entitled  to  past,  present  and  future 
damages  if  the  nuisance  is  permanent,  and  to  damages  accrued 
up  to  the  time  of  the  bringing  of  the  suit,  if  the  nuisance  is 
temporary.^2 

7T  Ottawa   Gas-Light    &   Coke  Co.  &  Eastern  R.  Co.,  226  111.,  129,  132 

V.  Thompson,  39  111.  598,  606  (1864).  (1907). 

78  Schmidt  v.  Brown,  226  111.  590,  8i  Chicago,  Peoria  &  St.  Louis  Ry. 

604   (1907).  Co.    V.    Reuter,    223    111.     387,     392 

-9Fairhank  Co.  v.  Bahre,  213  111.  (1906). 

636,  642    (1905).  82  Fairbank  Co.  v.  Bahre,  213  111, 

80  Tetherington  v.  St.  Louis,  Troy  641. 


CASE  725 

1343  Nuisance,  public;  action 

A  private  action  is  maintainable  by  anyone  who  suffers  special 
damages  different  in  kind  and  not  merely  in  degree  or  extent, 
from  the  damages  sustained  by  the  public  in  general,  and  who 
is  himself  free  from  contributory  negligence.^^ 

1344  Nuisance,  declaration  requisites 

In  an  action  on  the  case  for  damages  resulting  from  a  private 
nuisance  it  is  not  necessary  to  charge  the  defendant  with  negli- 
gence, because  as  a  general  rule,  the  question  of  want  of  care 
is  not  involved  in  such  an  action.  Nor  is  it  necessary  to  use 
the  word  "nuisance"  if  the  facts  alleged  constitute  a  nuisance.^* 
In  an  action  for  damac^es  which  result  from  a  public  nuisance 
the  declaration  must  show  special  and  peculiar  damages,  differ- 
ent in  kind,  and  not  merely  in  degree  or  extent,  from  those  which 
the  general  public  has  sustained.^^ 

1345  Obstructing  navigation,  bridge;  action 

A  township  having  the  control  of  bridges  is  liable  for  the  ob- 
struction of  navigation  by  the  construction  and  maintenance  of 
a  bridge.*" 

1346  Obstructing  navigation,  bridge;  declaration  requisites 

In  an  action  bast'd  upon  the  construction  and  maintenance  of 
a  bridge  over  a  navigable  river,  it  must  be  averred  in  the  dec- 
laration that  the  construction  and  maintenance  of  the  bridge 
interferes  with  the  plaintiff's  established  business  on  the  river 
above  or  below  the  place  of  the  bridge,  or  that  the  construction 
and  maintenance  of  the  bridge  injuriously  affects  the  plain- 
tiff's riparian  property  rights.^" 

1347  Obstructing  public  street,  railroad;  action 

The  erection  and  the  maintenance  of  an  unlawful  obstruction 
in  a  public  street  or  highway,  as  the  unlawful  construction  and 

83  McEnirv  v.  Tri-City  Rv.  Co.,  2o4  so  Harlem  v.  Emmert,  41  III.  319, 
HI.  99,  102 '(1912).             ■  323    n86<n. 

84  Laflin  &  Rand  Powder  Co.  v.  87  Swain  &  Son  v.  Chicago,  Bnr- 
Teamcv,  131  111.  322,  325,  32G  lington  &  Quincy  R.  Co.,  252  111. 
(1890)".  625. 

8-'>  Swain  &  Son  v.  Chicago,  Bur- 
lingrton  &  Quincy  R.  Co.,  252,  111. 
622,  626  (1912). 


726  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

operation  oi"  a  railway,  is  an  actionable  nuisance  when  sjieeial 
damages  and  freedom  from  contributory  negligence  are  made  the 
basis  of  the  action.**^ 

1348  Obstructing-  public  street,  railroad;  declaration  requisites 

A  declaration  based  upon  the  unlawful  obstruction  of  a  street 
must  allege  the  unlawful  character  of  the  obstruction,  the  plain- 
tiff's freedom  from  contributory  negligence,  and  special  damages 
different  in  kind,  and  not  merely  in  degree  or  extent,  from  the 
damages  sustained  by  the  pul)lic  in  general. **»  The  declaration 
must  show  a  state  of  facts  from  which  the  legal  conclusion  can 
be  drawn  that  the  obstruction  had  been  maintained  in  the  street 
for  an  unrciisona])le  length  of  tiine.""^  In  an  action  for  damages 
resulting  from  the  construction  and  operation  of  a  railroail  ad- 
joining the  plaintiff's  premises,  the  declaration  must  aver  facts 
showing  that  the  damages  to  the  plaintiff's  property  arc  of  a 
pernument  nature.  The  description  of  the  locus  in  quo  is  legally 
essential  to  and  is  of  the  substance  of  this  action.  An  averment 
of  a  specific  description  must  be  proved  as  laid.®^ 

1349  Overflow  of  lands,  dam  across  slough,  Narr.  (111.) 

For  that  whereas,  the  plaintiff  was,  on  the day 

of   ,  19.  .,  and  for  a  long  time  prior  thereto  had 

been,  in  possession  of,  using  and  occupying  the  following  de- 
scribed real  estate,  to  wit,  a  parcel  of  land  consisting  of 

acres  olf  of  the  north  end  of  a  certain  tract  of  land  known  as 

tract  situated  on  a  certain  island  known  as 

or island,  lying  in  section in  township , 

range ,  west  of  the  third  principal  meridian  in  the  county 

of ,  in  the  state  of  Illinois,  the  said acre 

tract  being  bounded  (State  legal  boundaries),  which  tract  of 
land  in  question  was,  at  that  time,  and  prior  thereto  had  been, 
used  for  agricultural  puri)oses  by  the  plaintiff;  that  along  the 
east  line  of  the  above  described  tract  was  a  natural  water-course 

known  as slough,  through  which  the  surface  water 

and  drains  from  the  lands  contiguous  thereto,  and  from  the 
lands  eastward  and  northward  of  said  slough,  and  from  the 
creeks  and  branches  to  the  northward  and  eastward  thereof 
were  discharged  into  the river ;  and  through  which 

8S  McEniry    v.    Tri-City    Ey.    Co.,  9i  Hart   v.   "Wabash   Southern   Ey. 

254  111.  102.  Co.,  238  111.  336   (1909);   Wisconsin 

89  McEniry    v.    Tri-City    Ey.  Co.,  Central    R.    Co.    v.    Wieczorek,    151 

supra.  111.  579,  585    (1894). 

soLefkovitz    V.    Chicago,    238    111. 
23,  30  (1909). 


CASE 


727 


water-course  the  back  water  and  flood  water  of  the 

river  also  found  their  way  again  into  said  river  without  damage 

to  the  land  aforesaid.  „      -,     .        ,i  i         •       +i,^ 

And  the  plaintiff  avers  that  the  defendant,  well  knowing  the 

premises  aforesaid  prior  to  the  time  above  named,  constructed 

a  dam  or  dyke  across  the  said ' ;  -,"1°"°^/  ^^7   f-i\^! 

a  mile  south  of  the  land  occupied  and  tilled  by  the  plaintiff  as 
aforesaid,  thereby  causing  on,  to  wit,  the  date  aforesaid,  the  water 
which  would  naturally  pass  off  and  through  the  said  •••••••••• 

slough  into  the river  to  be  obstructed  and  thrown 

back  upon  the  lands  then  occupied  by  the  plaintiff  as  above  de- 
scribed, whereby  plaintiff's  crops  on  said  lands  consisting  of 
wheat,  corn,  oats  and  potatoes  were  destroyed,  and  the  land  was 
thereby  bv  reason  of  said  overflow  greatly  damaged  for  that 
season  and  for  the  succeeding  season.    To  the  damage,  etc. 

J) 

For  that  whereas,  before  and  at  the  time  of  the  committing 
of  the  grievances  by  the  defendants  hereinafter  mentioned,  a 
certain  farm  with  the  appurtenances,  situated  in  the  county  and 
state  aforesaid  and  described  as  follows,  to  wit,  the  (Insert  de- 
scription) P.  M.,  were  in  the  possession  and  occupation  ot  one 
the  reversion  thereof  then  and  there  belonging 
to  the' piaintVff  as  it  still  does,  at,  to  wit,  the  county  and  state 
aforesaid;   and  the   plaintiff   avers  that  before   and   until   the 
time  of  the  committing  of  the  grievances  by  the  defendants  here- 
inafter mentioned,  through,  over  and  across  the  northeast  por- 
tion of  which  said  premises  from  the  south  in  a  northerly  direc- 
tion, an  ancit'ut  stream,  slough,  or  water-course,  was  wont  to 
turn  and  flow  in  its  natural  channel,  without  obstruction  or  in- 
terruption, and  of  right  ought  now  to  so  run  and  flow ;  by  means 
whereof  said  premises  from  the  time  whereof  the  memory  ot 
man  runneth  not  to  the  contrary,  and  until  the  said  time  when 
etc     were  drained,  maintained,  and  kept  in  good  tillable  and 
arable  condition,  and  free  from  all  injurious  and  damaging  ex- 
cess of  water;  and  of  right  ought  now  to  be  so  drained,  main- 
tained and  kept  in  good  tillable  and  arable  condition   and  tree 
from  all  injurious  and  damaging  excess  of  water,  by   means 
whereof   and  upon  said  premises,  before,  at,  and  until  the  said 
time    when    etc.,  there  were  accustomed  annually  to  grow  and 
mature  large  quantities  of  the  usual  and  ordinary  farm  prod- 
ucts, of  great  yearly  value,  to  wit,  of  the  yearly  value  of 

dollars.  .        ,  •        v   i.        ^  • 

And  the  defendants,  well  knowing  the  premises,  but  conta- 
iner to  injure  the  plaintiff  in  his  reversionary  estate,  and  interest 
inland  to  said  premises,  and  the  appurtenances  thereunto  be- 
loncrincr  whilst  they  were  so  in  the  possession  and  occupation 
of  fhe^said  and  whilst  the  plaintiff  was  so  inter- 
ested therein  as  aforesaid,  on,  to  wit,  the  day  of 


728  ANNOTATED   FOKM.S   OF   PLEADING    AND    PRACTICE 

,  19.  .,  and  at,  to  wit,  the  county  aforesaid,  wrong- 
fully and  injuriously,  with  a  certain  line  or  track  of  railroai!, 

coimnonly  called   the    ,   with  the  trenciies,   bridges 

aiid  embankments  thereof  by  the  dt-fendants,  then  and  there 
built  and  constructed  over,  through  and  across  said  premises 
and  the  said  ancient  stream,  slough  or  water-course,  obstructed, 
and  impeded,  and  so  narrowed  and  tilled  up,  and  caused  to  be 
so  obstructed  and  impeded,  and  so  narrowed  and  filled  up,  the 
natural  channel   thereof,  that  said  ancient  stream,  slough,   or 

water-course  thereby  became  and  was,  on,  to  wit,  the  said 

of ,  11).  .,  and  at,  to  wit,  the  i-ouuly  aforesaid,  per- 
manently incapable  of  draining,  nuiintainiug  and  keei)ing  said 
premises  in  good  tillable  and  arable  condition,  and  free  from  all 
injurious  and  damaging  excess  of  water,  as  before,  at,  and  until 
the  said  time,  when,  etc.,  said  premises  were  accustomed  to,  and 
of  right  ought  now  to  be  drained,  maintained  and  kept  in  good 
tillable  and  arable  condition,  and  free  from  all  injurious  and 
danuiging  excess  of  water. 

Whereby,  and  by  means  whereof,  said  premises  were,  on,  to 

wit,   ,  19.  .,  and,  at,  to  wit,  the  county  and  state 

aforesaid,  and  from  thence  hitherto  have  been,  and  from  time  to 
time  in  the  future  will  be,  rendered  permanently  unfit  and  in- 
capable of  growing  and  producing  the  said  annual  crops  of  the 
said  ordinary  and  usual  farm  products;  by  means  of  which 
said  several  premises  the  plaintiff,  has  been,  and  is,  badly  preju- 
diced and  injured  in  his  said  reversionary  interest  and  estate 
in  and  to  said  premises  and  the  appurtenances  thereunto  belong- 
ing.    Wherefore,  etc. 

1350  Overflow  of  lands,  ditch  improperly  constructed,  Narr. 
(111.) 

For  that  whereas,  during  the  year and  prior  thereto 

and  until  the  present  time,  plaintiffs,  as  tenants  in  common,  have 
been  possessed  of  a  leasehold  estate  in  and  liave  been  in  posses- 
sion and  occupation  of  the  following  tiescribed  property,  to  wit: 

a  certain  farm  or  tract  of  land  known  as  the  '' farm," 

situated  in  the  county  of and  state  of  Illinois,  in 

sections  ....  and  .  . .  . ,  township, range 

west,   said   farm  containing   about    acres,   and  being 

bounded  on  the  north  by  the  road,  south  by  the 

railroad  tracks,  east  by  the  farm  known  as  the 

" farm, ' '  and  west  by  land  known  as  the 

farm,  which  said  farm  or  tract  of  land  has  been  cultivated  and 
used  by  plaintiffs  for  agricultural  and  grazing  purposes;  and, 
whereas,  the  natural  fall  and  drain  of  a  large  portion  of  said 
farm  being  the  eastern  portion  thereof  is  now  and  always  has 
been  to  the  south  and  then  to  the  east,  the  waters  draining  on  to 
it  and  falling  thereon  naturally  flowing  and  draining  nrst  south- 
wardly into  a  ditch  or  drain,  which  runs  along  the  southern 


CASE  729 

line  of  said  farm,  and  then  eastwardly  in  said  ditch,  through  the 

adjoining  tract  of  land  known  as  the   farm  into 

a  natural  depression  or  water-course  which  runs  through  said 

farm  from  north  to  south  at  a  distance  of  about 

yards  east  of  the  said  farm  leased  by  plaintiffs, 

and  which  passes  under  and  through  a  trestle  of  the 

railroad  at  a  point  a  little  south  of  plaintiff's  said  farm  and 
about yards  east  thereof ;  the  said  natural  depres- 
sion or  water-course,  prior  to  the  commission  •  by  defendant  of 
the  wrongs  and  injuries  hereinafter  mentioned,  having  at  all 
times  been  adequate  and  sufficient  to  carry  off  waters  flowing 
and  draining  therein,  and  having  served  as  and  constituted  an 
adequate  and  sufficient  drain  for  the  said  eastern  portion  of  said 
farm  so  leased  by  plaintiffs ;  and  whereas,  at  all  times  herein- 
after mentioned  defendant  was  and  still  is  a  corporation  engaged 
in  the  business  of  operating  a  certain  system  of  railroad,  and 
possessing,  maintaining,  operating  and  controlling  a  certain 
right  of  way,  roadbed  and  railroad  track,  running  east  to  west 

at  a  distance  of  about   yards  more  or  less  south 

of  the  above  mentioned  farm  leased  by  plaintiff's,  as  aforesaid, 
and  nearly  parallel  to  the  south  line  thereof;  and,  whereas  there 
is  a  certain  running  stream,  creek,  or  natural  water-course  known 

as ,  having  a  well  defined  bed  and  channel,  which  said 

creek  enters  from  the  east  of  the  above  mentioned farm, 

which  is,  as  aforesaid,  a  tract  of  land  adjoining  the  said 

farm,  leased  by  plaintiff's,  on  the  east,  and  then  flows  in  a  general 
■westwardly  direction  along  the  north  side  of  defendant's  right  of 
way  and  railroad  track  until  it  arrives  at  a  trestle  constructed  on 

defendant's  said  right  of  way  about yards,  more  or  less, 

southeast  of  the  said farm,  and,  while  in  its  nat- 
ural course  and  condition,  and  prior  to  the  coimnission  by  de- 
fendant of  the  grievances  herein  complained  of,  said  ci'eek,  upon 
arriving  at  said  trestle,  made  a  turn  or  bend  southwardly  and 
flowed  through  said  trestle  and  underneath  defendant's  roadbed 
and  railroad  track  continuing  its  course  south  thereof,  and  being 
at  all  times  of  sufficient  dimensions  to  carry  off  all  waters  and 
drift,  naturally  flowing  and  draining  therein,  and  dischaj-ging 
same  south  of  said  trestle ;  and,  whereas,  heretofore,  to  wit,  dur- 
ing the  year ,  defendant  did  wrongfully  obstruct,  change 

and  divert  the  natural  course  of  said    w'here  it 

flowed  under  defendant's  said  track  and  through  said  trestle 
as  aforesaid,  and  did  dig  a  ditch  which  it  connected  with  said 
creek  immediately  north  of  said  trestle  and  on  its  said  right  of 
■way,  said  ditch  extending  in  a  westerly  direction  from  its  junc- 
tion with  said  creek,  along  the  noi-th  side  of  defendant's  said 
right  of  way  and  parallel  thereto  for  a  distance  of  about  one- 
half  a  mile,  more  or  less,  and  then  emptying  into  the  first  above 
mentioned  depression  or  water-course  which  served  as  a  drain 

for  the  eastern  portion  of  said   farm,  which  was 

occupied  and  cultivated  by  plaintiffs  aforesaid;  by  means  of 


730  ANNOTATED   FORMS  OF    PLEADING   AND   PRACTICE 

which  wrongful  acts  of  defendant  the  water  and  drift  wliich 

naturally  was  accustomed  to  flow  in  said creek  and 

be  discharged  south  of  defendant's  said  railroad,  was  diverted 
in  said  ditch  and  llowed  westwardly  for  a  lung  distance  tiicrein, 

whereby  the  course  and  channel  of  said creek  was 

changed  and  diverted  and  the  flow  of  the  water  therein  was 
hindered,  and  obstructed. 

And  thereupon  it  became  the  duty  of  defendant  to  construct 
and  at  all  times  maintain  said  ditch  in  a  careful  and  skilllul 
manner  so  that  it  would  at  all  times  l)e  in  all  respects  fully  ade- 
quate and  sufficient  to  carry   off  all   water  and   drift   flowing 

therein  from  said   creek;  but  plaintilfs  aver  that 

defendant,  disregarding  its  duty  in  that  behalf,  constructed  said 
ditch  in  a  negligent,  unskillful  and  insutlicient  numner,  and 
that  said  ditch  has  ever  since  its  construction  been  negligently, 
unskillfully  and  insufliciently  nuiintained  by  defendant,  and 
has  at  all  times  been  of  nuich  less  width  and  depth  tlian  the 

natural  bed  of  the  aforesaid   creek,  and  has  been 

of  insuflicient  size  and  dimensions  and  totally  inade(|uate  to 
properly  carry  away  the  water  flowing  therein  in  time  of  severe 
rain ;  all  of  which  said  wrongful  acts  wei-e  done  by  defendant 

in  the  county  of ,  state  of  Illinois;  that  because  of 

the  insufficient  manner  in  which  said  ditch  has  been  constructed 
and  maintained,  logs,  ])ranches,  leaves,  and  drift  of  all  kinds, 

which  found  their  way  into  said creek,  and  thence 

into  said  ditch,  all  of  which  said creek  had  here- 
tofore, while  in  its  natural  state,  readily  carried  along  and  ilis- 
charged  south  of  defendant's  railroad,  as  well  as  such  rocks  and 
drift  as  fell  or  otherwise  found  their  way  directly  into  said 
ditch,  became  attached  and  stuck  to  the  sides  and  bottom  of 
said  ditch,  thus  clogging  and  damming  it  up  and  impeding 
and  obstructing  its  flow;  and  plaintilfs  aver  tiiat  during  the 
spring  and  sununor  of ,  by  reason  of  the  wrongful  di- 
version of  the  natural  couree  of  said creek  by  de- 
fendant and  of  the  unskillful,  insufficient,  inadeciuate  and  negli- 
gent manner  in  which  said  ditch  was  constructed  and  maintained 
by  defendant  as  aforesaid,  and  the  insufficient  dimensions  thereof, 
said  ditch  became  clogged  and  dammed  up  with  rocks,  branches, 
logs,  drift,  etc.,  and  in  time  of  severe  rain  was  totally  insufficient 
and  unable  to  carry  off  the  water  flowing  therein,  and  such 

water  was  backed  up  into   creek,  and  said  creek 

and  said  ditch  both  overflowed  their  banks  and  a  large  volume 
of  water  spread  out  over  the  adjoining  land  and  flowed  and  was 
emptied  into  the  first  above  mentioned  depression  or  water- 
course, which  served  as  a  drain  for  said  eastern  portion  of  said 

farm,  leased  by  plaintiffs,  as  aforesaid,  and  a  large 

quantity  of  said  water  was  forced  and  flowed  with  a  strong  cur- 
rent in  a  northwardly  direction  toward,  under  and  through  the 
first  above  mentioned  trestle,  through  which  said  depression  or 
water-course,   draining  the  said   farm  leased  by  the  plaintiffs 


CASE  731 

passed  in  its  course ;  that  said  large  volume  of  water  thus  empty- 
ing into  said  depression  or  water-course  and  thus  forced  north- 
wardly under  said  trestle  carried  with  it  a  large  quantity  of 
drift,  debris  and  sediment  which  was  deposited  in  said  depres- 
sion south  of  said  trestle  and  also  under  said  trestle,  whereby 
said  trestle  became  partially  clogged  and  dammed  and  the  said 
depression  was  partially  filled  up,  obstructing  and  impeding  the 
natural  How  of  said  depression  or  water-course ;  and  in  the 
spring  and  summer  of  ....  the  water  thus  carried  northwardly 
through  said  trestle  as  well  as  the  water  tiowiug  and  draining 
into  said  water-course  north  of  said  trestle  was  unable  to  ade- 
quately flow  or  drain  back  southwardly  in  the  natural  channel 
of  said  water-course  as  it  had  been  accustomed  to  drain,  and  the 
water  naturally  draining  off  of  the  said  eastern  portion  of  said 

farm  into  the  above  mentioned  ditch  running  along  the 

south  line  thereof,  as  aforesaid,  and  then  through  said  ditch  into 
said  water-course  could  no  longer  so  flow  and  drain,  but  such 
water  together  Avith  the  water  thus  forced  northAvardly  through 

said  trestle,  was  backed  up  into  said  ditch  and  on  to  said 

farm  and  overflowed  the  same,  and  said  eastern  portion  of  said 
farm  was  prevented  from  being  adequately  drained  as  it  pre- 
viously had  been  by  means  of  the  aforesaid  depression  or  water- 
course. 

Whereby  said  farm,  so  leased  by  plaintiffs,  was  flooded  and 
the  crops  of  wheat,  clover,  and  other  agricultural  products  which 
plaintiffs  had  planted  and  were  cultivating  were  ruined,  and  a 
large  tract  of  pasture  land  covered  with  grass  and  used  for 
grazing  purposes  was  rendered  unfit  for  such  use  during  the 

season  of ,  or  for  any  valuable  use ;  and  plaintiffs, 

were  damaged  in  many  and  divers  other  ways  in  the  sum  of 
dollars ;  wherefore,  etc. 

1351  Overflow  of  lands,  drainage  channel,  action 

The  Sanitary  District  of  Chicago  is  liable  for  damages  to 
lands  caused  by  overflows  of  its  channels,  regardless  of  the  ab- 
sence of  proof  of  negligence  in  their  operation ;  and  the  plain- 
tiff is  entitled  to  a  reasonable  attorney's  fee  in  an  action  for  such 
damages.^-  # 

1352  Overflow  of  lands,  drainage  channel,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of , 

19.  .,  and  for  more  tlian   years  prior  thereto  and 

from  thence  hitherto  the  said  plaintiff  owned  in  fee  simple  the 

foUoAAing  described  real  estate,  all  lying  Avithin    

county  in  the  state  of  Illinois,  said  property  lying  adjacent  to 

92  Jones  V.  Sanitary  District,  252 
Dl.  591,  604,  606   (1912). 


732  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

and  near  to  the river,  said  property  being  as  ful- 

lows,  to  wit:  (Insert  description)  which  said  real  estate  was 
covered  with  timber  of  great  value  in  a  lively  and  flourishing 

condition  on  the  said day  of ,  ID.  ., 

and  which  said  timber  consisted  of  oak,  ash,  linden,  butternut, 
walnut,  pecan  and  various  other  trees,  the  lumber  of  which  was 
valuable  for  commercial  and  manufacturing  purposes. 

And  plaintiff  further  alleges  that  said  lands  during  all  of 
said  period  above  mentioned  were  valuable  to  plaintiff  for  graz- 
ing purposes  and  for  agricultural  purposes  and  Avere  used  from 
time  to  time  by  the  plaintiff  for  both  of  said  purposes  and  also 
lor  the  cutting  of  timber  therefrom  to  be  sold  as  a  source  of 
profit  by  the  said  plaintiff'. 

Plaintiff  further  alleges  that  on  the  said day  of 

,  19. .,  and  at  all  times  since  said  date,  the  said 

defendant  has  been  engaged  in  causing  the  waters  of  Lake  Mich- 
igan to  floAV  through  its  certain  drainage  canal,  and  by  means 

of  other  intermediate  canals  and  streams  into  the 

river  so  that  said  water  flowed  into  said river  at 

a  point  above  the  district  wherein  are  located  the  lands  of  the 

plaintiff,  and  that  thereby  the  amount  of  water  in  the 

river  has  been  greatly  increased  during  all  of  the  period  afore- 
said, namely  from   ,  19.  .,  until  the  beginning  of 

this  suit,  and  until  the  present  time. 

And  plaintiff'  alleges  that  said  sanitary  canal  was  constructed 
and  operated  by  said  defendant  under  and  pursuant  to  a  certain 
statute  of  the  state  of  Illinois  in  that  behalf,  giving  the  said 
defendant  power  to  operate  said  sanitary  canal  but  providing 
that  said  sanitary  district,  the  defendant  herein,  should  be 
liable  for  all  damage  to  any  real  estate  within  or  without  said 
district  which  should  be  overflowed  or  otherwise  damaged  by 
reason  of  the  construction,  enlargement  or  use  of  said  channel. 

That  during  the  period  aforesaid  the  said  defendant  has  con- 
tinuously operated  said  sanitary  canal  and  has  during  said 
period  continuously  and  at  all  times  cast  large  quantities  of 
water  into  said  river,  so  that  the  same  has  con- 
tinuously overflowed  its  banks  at  or  near  the  aforesaid  lands  of 

the  said  plaintiff  and  said  waters  of  said river,  by 

reason  thereof,  have  overflowed  onto  and  across  and  upon 'the 
lands  aforesaid  of  the  said  plaintiff,  and  has  stood  upon  said 
lands  for  the  greater  portion  of  each  year. 

And  the  plaintiff  alleges  that  said  quantities  of  water  flowing 
over  and  standing  upon  the  said  lands  aforesaid  causes  and  has 
caused  large  numbers  of  said  trees  to  die,  and  that  by  reason 
of  the  overflo^ving  of  the  said  lands  as  aforesaid  so  caused  by 
the  said  defendant  by  the  use  of  said  sanitary  canal  and  bv 
reason  of  the  waters  standing  upon  the  lands  aforesaid,  the  said 
timber  upon  said  lands  has  been  continuously  and  continually 
dying  during  the  period  aforesaid  and  is  now  gradually  dying 
and  many  trees  are  dead  upon  said  land,  by  reason  of  said 


CASE 


733 


grievances,  and  many  of  said  trees  are  dying  and  are  in  a  dying 
condition,  so  that  the  plaintiff  by  reason  of  the  acts  of  the  said 
defendant  has  been  greatly  damnified  and  the  standing  timber 
and  trees  upon  said  lands  has  been  greatly  damaged. 

And  the  plaintiff  further  alleges  that  by  reason  of  the  over- 
flow of  said  waters  upon  said  lands  aforesaid  so  caused  to  over- 
flow bv  the  acts  of  the  said  defendant,  plaintiff  has  lost  large 
gains  and  profits  which  he  might  otherwise  have  acquired  from 
said  land  for  grazing  and  agricultural  purposes  during  the 
period  aforesaid. 

Wherefore  an  action  has  accrued  to  this  plaintiff  under  and 
by  virtue  of  the  statute  in  that  case  made  and  provided  to 
demand  and  recover  of  the  defendant  the  damages  so  sustained 
by  him.    To  the  damage,  etc. 

1353  Overflow  of  lands,  embankment;  action 

A  railroad  company  is  liable  at  common  law,  in  damages,  for 
the  overflow  of  abutting  lands  caused  by  the  negligent  construc- 
tion or  maintenance  of  embankments  whereby  the  natural  chan- 
nel through  the  surface  waters  derived  from  rain  or  snow  is 
obstructed.'-'^  Each  overflow  upon  land  of  adjoining  owners 
caused  hy  the  negligence  of  another  is  a  fresh  nuisance  and 
creates  a  new  cause  of  action.^*  A  nuisance  thus  created  is  per- 
manent, and  authorizes  a  recovery  for  past  and  future  injury  to 
the  property.^^ 

1354  Overflow  of  lands,  embankment,  Narr.  (111.) 

For  that  whereas  the  plaintiff,  on,  to  wit,  the day 

of  ' ,  19.  .,  was  and  from  thence  hitherto  has  been 

and  still  is  the  owner  and  lawfully  possessed  of  the  following 
described  real  estate,  to  wit:  (Set  forth  legal  description),  in 

county,  Illinois,  used  and  cultivated  as  a  farm ; 

and  the  defendant  was  and  has  been  at  all  times  since  possessed 
of  a  certain  right  of  way  running  along  and  near  the  northerly 
part  of  said  real  estate  of  the  plaintiff. 

That  through  or  along  the  north  part  of  plaintiff's  said  farm 
there  then  was  and  now  is  a  certain  stream  commonly  called 

,  which  runs  and  naturally  drains  large  quantities 

of  water  off  the  said  farm  and  many  farms  east  and  north  and 
west  of  plaintiff's  said  farm  in  times  of  ordinary  floods,  heavy 
rain  storms  and  freshets,  said  ,  also  known  as 

93  Chicago  Peoria  &  St.  L.  Ey.  Strange  v.  Cleveland,  C.  C.  &  St.  L. 
Co   V.  Eeuter,  223  111.  387   (1906).  Ey.   Co.,   245   111.   246,   250    (1910); 

94  Chicago,  Peoria  &  St.  L.  Ey.  CI.  5,  sec.  19,  c.  114,  Kurd's  Stat. 
Co   V.  Eeuter,  223  111.  392 :  Eamey  v.  1909. 

Baltimore   & 'Ohio   Southwestern  E.  95  Strange   v.   Cleveland,   C.   C.   & 

Co.,    235     111.     502,     506      (1908);       St.  L.  Ey  Co.,  s«pra. 


734  ANNOTATED   FORMS   OF    PLEADING    AND   PRACTICE 

has  always  heretofore  and  now  overflows  its  banks 

and  spreads  over  part  of  the   farm  of  the  said 

plaintiff  and  other  lands  in  the  vicinity,  and  large  quantities  of 
the  overflow  water,  as  aforesaid,  formerly  naturally  ran  and 
flowed  in  a  westerly  and  northwesterly  direction  through  the 
lands  of  the  plaintiff  and  adjoining  lands  into,  over  and  upon 

the  land  known  as  the  north  of  and  adjacent  to 

the  lands  of  the  plaintiff,  and  thence  into  the 

(creek),  without  serious  injury  to  the  farm  of  the  plaintiff. 

That,  on,  to  wit, ,  19.  .,  the  defendant  was  pos- 
sessed of,  using  and  operating  a  certain  railroad  over  a  certain 
embankment  located  on  said  right  of  way,  which  embankment 

was  of  great  dimensions,  to  wit,  of  the  height  of 

feet,  of  the  width  of,  to  wit, feet  and  of  the  length 

of  more  than   mile,  which  said  embankment  was 

built  across  the  natural  water-course  or  flow  of  said  waters, 

which  overflowed  from  said as  aforesaid,  and 

said  embankment  was  without  any  openings  therein  to 
permit  the  free  passage  of  water  naturally  flowing  up  to  and 
against  the  same. 

That,  on,  to  wit, ,  19 .  . ,  a  flood  or  freshet  occurred 

and  the  overflow  w^aters  from  said flowed  toward 

the  w^est  and  northwest  up  to,  against  and  over  said  embankment, 
and  broke  the  same  and  washed  out  a  large  part  of  said  embank- 
ment, to  wit, feet  in  length, feet  in 

width  and feet  in  depth  and  other  places 

feet  in  length,  across  and  under  said  railroad,  and  the  waters 
which  had  accumulated  and  been  held  back  by  said  embankment 
in  their  natural  flow  thereupon  flowed  through  said  opening  in 

their  former  natural  course  to  and  upon  the  said 

farm  and  into  said (creek) . 

That  the  defendant  thereafter  wrongfully  and  negligently 
repaired  and  rebuilt  its  said  roadbed,  embankment  or  All  as 
aforesaid  which  had  so  washed  away  as  aforesaid,  without  any 
openings  therein  to  permit  the  free  passage  of  the  Avater  which 
might  thereafter  naturally  flow  to,  upon  and  against  said  em- 
bankment, and  thereafter  maintained  the  same  without  any  open- 
ings thereunder.  And  on  divers  and  sundry  days  thereafter 
said  embankment  under  said  railroad  was  again  washed  out 
and  away  and  again  rebuilt  solid  as  aforesaid  by  said  defendant. 

That  on  various  days  thereafter  in  the  months  of 

and and  on  other  days  since  said  time,  by  reason 

of  said  embankment,  M^hich  the  defendant  so  wrongfully  and 
negligently  rebuilt  and  maintained,  the  natural  flow  of  large 
quantities   of  rain-water   and   the   overflow   waters   from   said 

w^hich  naturally  flowed  upon,  over  and  across  the 

said  premises  of  the  defendant  were  obstructed,  and  the  said 
water  was  diverted  from  its  natural  course  by  said  embankment, 
and  ran  and  flowed  in  a  different  direction  over  and  upon  the 
said  land  and  premises  of  the  plaintiff,  and  large  quantities  of 


CASE        _  735 

said  water  were  held  and  thrown  and  remained  on  the  said  lands 
of  the  plaintiff,  and  thereby  the  said  lands  and  premises  of  the 
plaintiff  were  greatly  damaged  and  injured  and  became  and* 
are  swampy  and  to  a  great  extent  unfit  for  cultivation,  and  the 

crops  growing  thereon  in  the  year    and  to  the 

date  of  the  commencement  of  this  suit  were,  to  a  large  extent, 
damaged  and  injured,  to  the  damage,  etc. 

(Maryland) 

For  that  whereas,  the  said  plaintiff  is  and  for  long  time  prior 

hereto,  to  wit,   years,  has  been  the  owner  and  in 

possession  of  a  certain  tract  of  land  in  the  county  of , 

,  known  as  part  of  a  tract  called  " , " 

situated  at  or  near , ,  along  the  rail- 
road of  the  said  defendant  company;  that  the  said  defendant 

from  ,  19. .,  has  been  and  still  is  the  owner  of 

a  line  of  railway  on  which  cars  are  operated  by  steam,  a  section 
of  which  railroad,  known  as  the  com- 
pany, runs  along  a  roadbed  immediately  adjacent  to  and  abut- 
ting the  said  land  of  the  plaintiff,  on  the  east  thereof;  that  on 
and  before  the  said  year,  the  said  defendant,  in  the  operation 
and  maintenance  of  said  branch  of  its  railroad,  had  built  and 
maintained,  and  now  maintains  a  large  embankment  along  the 
course  of  said  railroad  abutting  the  said  land  of  the  plaintiff 
on  the  east  thereof,  whereon  it  had  constructed  and  maintains 
a  roadbed,  upon  which  tracks  were  laid  and  are  maintained 
upon  which  its  cars  might  and  do  run;  that  at  the  time  of  the 
building  of  said  tracks  and  bank,  that  portion  of  the  land  of 
plaintiff^  lying  contiguous  to  said  bank  and  tracks,  was  low,  in- 
clined toward  the  east,  and  had  a  natural  drainage  across  said 
land  occupied  by  said  railroad  company  as  aforesaid,  and  the 
drainage  of  the  said  land  of  plaintiff  Avas  drained  and  carried 
off  toward  the  east  across  said  line  or  bank  and  railroad  track ; 
that  said  drainage  of  water  and  the  flow  thereof  was  not  ob- 
structed, but  was  free  and  carried  away  and  off  by  natural 
drainage  on  the  surface  without  damage  to  the  said  property 
of  plaintiff,  and  said  water  and  drainage  had  access  towards 
the  east,  and  at  numerous  places  along  the  line  of  railroad  track 
and  bank,  and  was  diffused  and  scattered  in  its  tlow  along  and 
over  the  surface  across  said  line  of  railroad;  that  the  build- 
ing of  said  tracks  and  bank  cut  off  and  obstructed  the  flow  of 
water  and  drainage  towards  the  east  across  the  same,  and  the  de- 
fendant railroad  company  carelessly  failed  and  omitted  to  make 
and  maintain  culverts  and  openings  through  said  bank  sufficient 
to  allow  the  free  passage  of  water  underneath  said  track;  but  the 
plaintiff  says  that  the  defendant  company  built  and  constructed 
but  one  culvert  underneath  said  track  and  bank,  but  that  said 
culvert  was  carelessly,  negligently  and  wrongfully  permitted  to 
become  filled  with  mud  and  debris,  and  to  rot,  so  that  the  water 


736  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

which  flows  from  her  property  cannot  pass  through  it  where 
it  naturally  should  escape,  and  the  defendant  has  carelessly, 
negligently  and  wrongfully  permitted  it  to  remain  in  that  con- 
dition, and  that  from  the  said day  of , 

19..,  hereinhefore  mentioned,  hitherto,  the  building  of  said 
embankment  and  maintenance  of  an  insufficient  culvert, 
has  prevented  the  said  drainage  and  water  from  freely  flowing 
and  draining  off  the  said  land  of  plaintiff  as  it  had  done  before 
the  happening  of  the  grievances  hereinbefore  mentioned,  but 
the  same  was  and  still  is  caused  to  be  backed  up  and  cast  back 
by  said  obstruction  and  stand  upon  the  lands  of  the  said  plain- 
tiff for  long  periods;  whereby  and  by  reason  whereof  tlie  use 
of  the  said  land  of  plaintiff  for  agricultural  and  gardening  pur- 
poses during  all  of  which  time  has  been  prevented  and  destroyed, 
which  use  had  theretofore  existed  and  the  benefits  thereof  ac- 
crued to  the  said  plaintiff,  and  plaintiff  has  thereby  been  caused 

to  suffer  a  loss  of dollars ;  and  further,  the  said  land 

of  plaintiff,  although  of  great  value  before  the  happening  of 
the  grievances  hereinbefore  referred  to,  has  by  reason  of  the 
premises  been  greatly  depreciated  in  value;  all  to  the  dam- 
age, etc."" 

(West  Virginia) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the  

day  of ,  19. .,  the  plaintiff  was,  and  ever  since  has 

been,  and  now^  is,  seized  and  possessed  of  a  certain  tract  of  land, 

lying  and  being  situate  on river,  in 

county.  West  Virginia,  and  being  a  portion  of  a acre 

survey,  patented  by  the  commonwealth  of  Virginia  to , 

by  virtue  of  an  entry  made  on  the of , 

. . . .,  the  said  portion  containing  acres,  more  or  less, 

and  bounded  and  described  as  follows:  Beginning  at  (Give 
legal  description). 

Plaintiff  says  that  the  said  river  is  a  running 

stream  of  water  with  well  defined  channel,  bed  and  banks;  that 
the  said  tract  of  land  above  mentioned  and  described  abuts  upon 
and  adjoins  the  said  stream  on  the  southern  side  thereof;  that 
on  the  day  and  year  last  aforesaid  and  for  a  long  time  prior 
thereto  the  channel  of  said  stream  at  and  near  the  said  tract  of 
land,  and  especially  where  the  said  stream  runs  along  by  and 
adjoining  the  said  tract  of  land,  was  such  that  the  current  of 
said  stream  was  thrown  to  and  ran  near  the  northern  bank  of 
same  and  opposite  the  said  tract  of  land  owned  by  the  plaintiff, 

96  The  foregoing  declaration  may  which  follow  the  common  law  rule 

be     used     in     states     which     follow  which    does    not    recognize    certain 

the    civil    law    concerning    dominant  duties  resting  upon  the  servient  es- 

and  servient    estate?-.     The   declara-  tate.     Baltimore   &   Ohio   R.   Co.  v. 

tion    should    not    be   used    in    states  Thomas,  37  App.  D.  C.  255  (1911). 


CASE  737 

which  course  the  plaintiffs  avers  was  the  usiial,  ordinary  and 
natural  course  of  said  stream  and  the  current  thereof. 

And  plaintiff  says  that  he  was  of  right  entitled  to  have  the 
said  stream  and  the  current  thereof  continue  to  run  in  its  usual, 
ordinary  and  natural  course  or  channel,  and  that  it  was  the 
duty  of  the  defendant  to  permit  the  said  stream  to  flow  in  its 
usual,  ordinary  and  natural  course  or  channel,  and  not  to  divert 
the  said  stream  and  cause  the  same  to  flow  in  another  than  its 
usual,  ordinary  and  natural  course  or  channel,  and  not  to  change 
the  course  of  the  said  stream  so  as  to  cause  the  same  to  flow  out 
of  its  ordinary  and  usual  course  or  channel  and  upon  the  lands 
of  the  plaintiff  and  cause  damage  thereto. 

But  plaintiff'  avers  that  on  or  about  the  day  and  year  last 
aforesaid  the  said  defendant  not  regarding  its  duty  and  obliga- 
tion in  this  behalf,  but  wholly  disregarding  the  same,  and  con- 
triving and  intending  to  injure  and  damage  this  plaintiff,  wrong- 
fully obstructed  the  bed  or  channel  of  said  stream  and  changed 
the  course  of  the  current  thereof  by  depositing  within  the  said 
channel  a  large  amount  of  earth  and  stone,  and  constructing  a 
large  fill  or  embankment  therein,  by  reason  whereof  the  said 
stream  was  diverted  from  its  usual,  ordinary  and  natural  course 
or  channel,  and  the  current  thereof  caused  to  flow  in  another 
than  its  usual,  ordinary  and  natural  channel,  and  the  course 
thereof  so  changed  as  to  cut  into  the  earth  a  deep  ditch  or  chan- 
nel of  great  width  on  the  southern  side  of  said  stream  and  into 
the  said  land  of  the  plaintiff",  and  outside  of  the  usual,  ordinary 
and  natural  course  of  said  stream,  thereby  causing  the  said  stream 
to  flow  along  and  through  the  said  channel  so  cut  by  the  said 
current  as  aforesaid,  and  out  of  its  usual,  ordinary  and  natural 
course,  and  through  the  said  lands  of  the  plaintiff";  by  reason 
whereof  the  said  current  of  the  said  stream,  being  so  diverted 
from  its  usual,  ordinary  and  natural  course  as  aforesaid,  cut 
through,  damaged,  destroyed  and  washed  away  large  portions 
of  said  land  belonging  to  this  plaintiff  and  so  situated  on  and 
near  the  said  stream  as  aforesaid,  to  the  damage  of  the  said 
plaintiff dollars. 

Therefore  he  brings  this  suit. 

1355  Overflow  of  lands,  levee  construction;  action 

If  a  drainage  district  has  failed  to  compensate  for  land  dam- 
aged by  the  construction  of  a  levee  an  action  on  the  case  lies  to 
determine  the  question  whether  such  lands  were  damaged  and  to 
recover  the  damages ;  and  if  damages  are  recoverable  they  may  be 
collected  by  assessment  against  the  lands  embraced  in  the  drain-. 
age  district.^^ 

97  Bradbury  v.  Vandalia  Levee  & 
Drainage  District,  236  111.  36,  44,  47 
(1908). 


738  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

1356  Overflow  of  lands,  levee  construction,  Nan*.  (Illinois) 

For  that  whereas,  heretofore,  to  wit,  on  tlie day 

of ,  19.  .,  and  for  many  years  prior  thereto,  and 

from  thence  hitherto,  plaintiffs  were  and  are  the  owners  of  and 
in  possession  of  the  following  described  real  estate,  to  wit :  (De- 
scribe property)    in    county,    lllirioLs,   containing 

about acres,  said  land  being  known  as  high  bottom  land, 

and  lies  west  of river. 

And  plaintiffs  aver  that  said  lands,  in  their  natural  states 
and  before  the  committing  of  the  grievances  hereinafter  com- 
plained of,  were  not  subject  to  overflow  by  freshets  or  the  flood 

waters  of  the    river,  but  were  valuable  farming 

lands  and  cultivated  by  plaintiffs. 

That  the  defendant  the   is  a  drainage  district 

organized  under  an  act  of  the  Illinois  legislature,  entitled.  An 
act  for  the  construction,  reparation  and  protection  of  drains, 
levees  and  ditches  across  the  lands  of  others  for  agricultural, 
sanitary  and  mining  purposes,  and  to  provide  for  the  organiza- 
tion of  drainage  districts,  approved  and  in  force  May  29,  1879, 
together  with  the  amendments  thereto. 

That  said  district  was  duly  organized  as  above  set  forth,  on 

or  about  the day  of ,  19 . . ,  and  that 

the  scope  of  the  improvement  provided  for  by  said  drainage 

district  as  fixed  by  the  decree  of  the  county  court  of 

county,  Illinois,  included  the  construction  of  a  levee  along  the 

east  side  of  the  river  as  near  the  banks  of  said 

river  as  it  could  conveniently  and  safely  be  erected,  said  levee 

to  begin  at  the  mouth  of creek  about  a  quarter  of 

a  mile  down  the  river  towards  its  mouth  from  the  lands  above 
described,  and  continuing  from  thence  along  the  east  side  of 

said   river  for  a  distance  of  about miles; 

also  a  levee  to  be  constructed  from  the  mouth  of 

creek  aforesaid  in  an  easterly  direction  to  the 

That  during  the  summer  of said  defendant  by 

its  commissioners,  officers  and  servants  erected  and  caused  to  be 
erected  a  levee  as  above  described  in  accordance  with  the  order 
and  decree  to  said county  court.  Said  levee  so  con- 
structed was  about  feet  in  height,  and  

feet  wide  on  top,  and  is  a  solid  embankment  of  earth  with  no 
outlet  from  the  river  into  the  lands  lying  on  the  east  side  of 
said  river. 

That  the river  is  a  stream  of  water  running  in 

a  southwesterly  direction  through  the  county  of  , 

along  and  by  the  lands  of  plaintiff  above  described;  that  at  the 
time  of  floods  and  freshets  said  stream  of  water  overflows  its 
banks,  and  overflows  and  inundates  a  wide  strip  of  land,  to  wit, 
a  strip  about  two  miles  in  width,  and  that  at  flood  time  the  bed 

of  said  river  is  about miles  in  width ;  but  plaintiffs  aver 

that  by  reason  of  the  construction  of  said  levee  by  the  said  de- 


CASE  739 

f endant  as  aforesaid,  the  said  flood  channel  of  the •.•••.♦•• 

river  is  very  much  narrower ;  that  in  some  places  along  said  river 
below  the  lands  of  plaintiffs  said  flood  channel  does  not  exceed 

in  width  the  width  of,  to  wit,   feet;  that  by  reason 

of  the  construction  of  said  levee  the  waters  of  said 

river  were  caused  to  rise  much  higher  on  the  west  side  of  said 
river  and  above  said  levee  in  time  of  freshets,  and  to  thereby 
overflow  the  lands  of  plaintiffs.  And  plaintiffs  allege  that  by 
reason  of  the  construction  of  said  levee  by  the  defendant  as 
aforesaid  their  said  lands  above  described  were  damaged  and 
various  crops  of  corn  and  other  grain  gi-owing  thereon  were 
destroyed  and  that  the  soil  of  said  land  washed  away  and  said 
lands  were  rendered  unwholesome,  unhealthy  to  live  upon,  and 
that  said  lands  were  greatly  depreciated  in  value. 

Wherefore,  and  by  reason  of  the  premises  and  the  laws  of  the 
state  of  Illinois  in  such  case  made  and  provided,  and  by  reason 
of  section  2  of  an  act  for  the  construction,  reparation  and  pro- 
tection of  drains,  ditches  and  levees  across  the  lands  of  others 
for  agricultural,  sanitary  and  mining  purposes,  and  providing 
for  the  organization  of  drainage  districts,  approved  and  in  force 
May  29,  1879,  the  defendant  became  and  was  liable  to  pay  to 
the  plaintiff's  all  of  their  said  damages  as  aforesaid,  to  wit,  in 
the  sum  of dollars. 

2.     And  whereas  also  on  or  about  the   day  of 

,  19.  .,  plaintiff's  were  and  still  are  the  owners  of  and  in 

possession  of  the  following  lands,  to  wit:  All  that  part  of  the 

(Describe  the  same),  which  lies  west  of  the river,  in 

county,  Illinois ;  and  that  said  lands  are  high  river 

bottom,  and  in  a  state  of  nature  are  not  subject  to  overflow 

by  the  flood  waters  of  the   river  except  in  times 

of  very  high  freshets  and  floods,  and  that  said  lands  are  valu- 
able farming  lands  and  in  a  high  state  of  cultivation. 

And  plaintiff's  aver  that  the  defendant  is  a  drainage  district 
organized  under  and  in  accordance  with  the  statute  of  the  state 
of  Illinois ;  that,  on,  to  wit, years  ago  said  defend- 
ant by  its  agents  and  servants  wrongfully  constructed  and 
caused  to  be  constructed  a  levee  along  the  east  side  of  said 

river,  beginning  at  a  point  about of 

a  mile  below  the  lands  of  plaintiffs,  and  running  thence  in  a 

southwesterly  direction  along  the  east  bank  of  the  said 

river  for  a  distance  of  about miles,  and  connected  at 

the  north  end  of  said  levee  with  the  bluffs  along  the  east  side 

of  the  said river  bottom ;  that  said  levee  is  a  solid 

embankment  of  earth  of  an  average  height  of  about  

feet,  and  ^\'ith  an  average  width  on  top  of  about  . ...  feet, 

without   any  opening  from  said    river  into  the 

lands  on  the  east  of  said river;  and  that  said  de- 
fendant by  its  agents  and  servants  as  aforesaid  has  wrongfully 
caused  said  levee  to  be  maintained  from  thence  hitherto. 

Plaintiffs  aver  that  the river  in  a  state  of  nature 


740  ANNOTATED   FORMS   OF   PLEADING    AND    I'UACTICE 

is  a  stream  running  in  a  general  southwesterly  direction  through 

the  county  of   ,  and  along  and  by  the  lands  of 

plaintiffs;  that  in  a  natural  state,  in  tinit's  of  freshets  and  Hoods 
the  waters  were  accustomed  to  overflow  the  hanks  of  said  stream 
on  both  sides  of  said  stream  and  that  the  tloud  eliannel  of  the 

said river  is,  to  wit,  about miles  in  width. 

Plaintiffs  aver  that  by  reason  of  the  wrongful  construction 
of  the  said  levee  as  aforesaid  by  the  defendant  as  aforesaid,  and 
the  wrongful  maintenance  of  the  said  levee,  the  waters  of  the 

said    river  are  compelled  to  flow  over  and  upon 

the  lands  on  the  west  side  of  the river  in  a  greater 

quantity,  and  to  a  greater  depth  than  they  otherwise  would 
have  flowed,  causing  the  lands  on  the  \.est  side  of  said  river 
and  above  said  levee  to  be  overflowed  at  times  when  they  would 
not  otherwise  have  overflowed ;  whereby  crops  of  corn  and  other 
grain  growing  upon  the  lands  of  plaintiff's  have  been  destroyed 
and  damaged,  and  the  lands  of  said  j)hiintitTs  have  been  washed 
and  damaged  and  greatly  diminished  in  value.    Wherefore,  etc. 

1357  Overflow  of  lands,  notice,  requisites 

No  particular  and  defined  location  of  the  land  is  required 
by  statute  in  a  notice  to  be  given  to  the  sanitary  district  claim- 
ing damages  from  an  overflow,  but  the  notice  is  sufifieient  if  it 
enables  the  sanitary  officers  to  locate  and  examine  the  premises 
with  a  view  to  a  settlement.®* 

1358  Overflow  of  lands,  sewer  insufficient,  Narr,  (Illinois) 

.  For  that  whereas,  before  and  at  the  time  of  the  committing 
of  the  grievances  by  the  defendant  as  hereinafter  mentioned, 
the  plaintiff  was,  and  from  thence  hitherto  had  been  and  still 
is  hiwfuUy  possessed  of  a  certain  tract  of  hind  and  premises, 

with  the  appurtenances  situated  in  the  county  of 

aforesaid,  which  land  and  premises  with  the  appurtenances,  the 
said  plaintiff  before  and  at  the  time,  as  aforesaiil,  used  and  en- 
joyed, and  of  right  ought  to  use  and  enjoy  for  pasturage,  grass 
and  hay  and  for  cultivating  the  same  and  sowing,  planting, 
growing  and  raising  thereon,  and  gathering  and  harvesting 
therefrom,  grass,  hay,  oats,  potatoes,  corn,  and  other  crops  per- 
taining to  good  husbandry  and  agriculture,  and  to  the  great 
profit  of  said  plaintiff,  said  land  being,  to  wit:  (Describe  prop- 
erty) in county, ;  that  the  southeast 

side  or  portion  of  said  land  was  next  to  and  upon  a  certain 
river  or  body  of  water  called  the  D  river  there  being  and  flow- 
ing ;  that  through  said  land  there,  then  and  there  flowed  a  certain 

98  Miller  v.  Sanitary  District,  242 
111.  321,  327  (1909.) 


CASE 


741 


stream  of  water  known  as  R  the  waters  of  whieli  then  and  there 
and  along  the  lands  of  the  plaintiff  empties  mto  said  river;  that 
said  river  and  stream  of  water  known  as  R  for  many  years,  to 
^it  years  next  prior  to  the  committing  of  the  griev- 

ances hereinafter  mentioned,  flowed  in  their  natural  courses 
and  channels  next  to  and  adjoining  and  through  said  land  and 
premises  to  said  plaintiff's  great  T^-oiit,  the  same  being  rich 
and  valuable  land  and  premises,  without  hurt,  injury  or  damage 
from  waters  of  or  flowing  in  said  river,  or  said  stream  ot  water 

known  as       ;  and  that  said  river,  stream  or  waters, 

before  and  up  to  the  time  of  the  committing  of  the  grievances 
hereinafter  mentioned  did  not  flood,  run  on  or  over,  percolate 
throuc'h,  saturate  or  stand  in  or  upon  said  land  or  premises, 
or  any  part  thereof,  so  as  to  damage  the  same  or  the  pasturage, 
grass  or  crops  thereon,  or  interfere  with  the  use  and  enjoyment 
of  said  land  and  premises.  .        -^    ..v. 

And  the  plaintiff  avers  that  the  defendant,  on,  to  wit,  the 
Jay  of ,  19 . . ,  was  and  is  a  corpora- 
tion organized  under 'the  statutes  of  the  state  of  Illinois  and 
thereby  was  and  is  empowered,  subject  to  the  payment  ot  all 
damages,  to  construct,  improve,  possess  and  use  channels  tor 
the  carrying  and  flowing  of  water  and  sewage  and  to  regulate 
the  passage  and  flow  of  water  and  sewage  therein,  and  was  and 
is  under  said  statutes,  and  the  law,  lial)le  for  all  damages  to 
real  estate  which  shall  be  overflowed  or  otherwise  damaged  by 
reason  of  the  construction,  enlargement  or  use  of  any  channel, 
ditch  drain,  outlet  or  other  improvement  made  by  it  under  said 
statutes,  and  for  reasonable  attorneys'  fees  for  prosecution  of 

suits  therefor.  ,  „     ,  .^       i  j 

And  the  plaintiff  avers  that  the  defendant  on  the  day  and 
year  aforesaid  was  and  is  using  and  is  in  control  of  certain 
permanent  channels  carrying,  and  for  the  future  to  continue 
to  carry,. large  quantities  of  water  and  sewage  from,  to  wit,  the 
in  the  state  of  Illinois  and  from  its  vicinity,  and 
from  to  wit,  the  C  river  in  said  state  and  from  Lake  .Michigan, 
upon'  whose  shore  said  city  is  located  down  into  said  D  river 
above  the  said  premises  of  the  plaintiff;  and  the  defendant  so 
using  said  channel  and  being  in  possession  and  control  thereot 
did  wrongfullv  and  negligently  cause  and  suft'er  large  quanti- 
ties of  water  and  sewage  to  pass  and  flow  through  said  channels, 
from  the  sources  aforesaid,  into  said  D  river,  at,  to  wit,  or  near 

the of in  said county,  above 

the  said  premises  of  the  plaintiff',  on.  to  wit,  the  . . ...  day 

of      ,  19 . . ,  and  divers  other  days  and  times  between 

that"  time  and' the  commencement  of  this  suit,  and  still  wrong- 
fullv and  negligently  causes  and  suffers  such  large  quantities 
of  waters  and  sewage  so  aforesaid,  and  not  theretofore  accus- 
tomed to  flow  in  said  D  river,  to  pass  and  flow  through  said 
channels  from  the  aforesaid  sources  into  said  D  river  at  to  wit, 
the  place  aforesaid,  thereby  greatly  increasing  the  volume  ot 


742  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

water  theretofore  in  said  river  and  permanently  and  continu- 
ously overflowing  the  banks  of  said  D  river  near,  at,  and  adjoin- 
ing plaintiff's  said  premises  and  causing  the  waters  of  said  R 
to  be  dammed  and  backed  up  and  to  overflow  its  banks  onto  the 
plaintiff's  said  lands  and  thereby,  and  by  reason  of  tlie  premises, 

permanently  overflowing  and  flooding,  to  wit,    acres 

of  said  premises  and  causing  water  and  sewage  to  run  upon, 
over  and  through  the  same  and  to  wash  away  large  portions  of 
the  surface  of,  and  to  stand  upon  and  in  the  same,  wholly  de- 
stroying the  said acres  of  land,  for  the  uses  aforesaid 

and  for  all  beneficial  purposes  and  uses,  so  that  the  plaintiff 
has  wholly  lost  the  use  and  benefit  of  the  same  by  reason  of 
said  acts  and  conduct  of  the  defendant  to  the  great  injury,  prej- 
udice and  hurt  of  the  plaintiff  in  the  possession,  use,  occupation 
and  enjoyment  of  said  land,  rendering  the  same  incommodious 
and  unfit  for  all  or  any  of  the  beneficial  uses  and  of  no  value 
or  use  to  the  plaintiff  by  reason  of  the  premises. 

And  the  plaintiff  avers  that  said  overflowing  and  flooding  of 
his  said  premises  by  the  defendant,  as  aforesaid,  was,  is,  and 
U'ill  be  permanent  and  said  channels  and  their  appliances  and 
the  flowage  of  water  and  sewage  as  aforesaid  in  large  (luantities 
will  be  continuously  maintained,  so  as  to  result  in  defendant's 
continuously  and  permanently  flooding  and  damaging  the  plain- 
tiff's premises ;  and  on  the day  of , 

19..,  the  plaintiff  served  upon  the  defendant  by  delivering  to 
one  of  the  trustees  of  the  defendant  a  notice  in  writing  that  he, 
the  plaintiff,  had  sustained  damages  by  reason  of  overflow  of  the 

premises  aforesaid  in  the  sum  of dollars  and  that 

he  intended  to  sue  for  said  damages;  and  plaintiff  avers  that 
his  reasonable  attorneys'  fees  in  said  cause  are  the  sum  of 
dollars. 

Wherefore  the  plaintiff  has  sustained  permanent  injury  and 
said  premises  have  been  and  are  permanently  damaged,  and  the 
defendant  has  become  and  is  liable  under  said  statutes  and 
under  the  law  to  the  plaintiff  in  the  sum  of dol- 
lars; and  therefore,  he  brings  this  suit. 

(Maryland) 

For  that  the  defendant  is  a  municipal  corporation  and  as  such 
is  charged  by  law^,  among  other  duties,  with  the  duty  of  skil- 
fully and  with  ordinary  care  constructing,  building  and  main- 
taining all  of  the  sewers  in  said  city  of  ,  and  of 

properly  grading,  constructing,  maintaining  and  keeping  in 
order  the  streets  belonging  to  said  corporation.  That  at  the 
happening  of  the  damage  hereinafter  complained  of,  the  plain- 
tiff was  the  owner  and  in  possession  of  a  certain  butcher  busi- 
ness in city  located  at  the  premises  No and 

,  which  property  has  a  front  on 

of  about  one feet  and  abuts  on  the  rear  on  a  nat- 


CASE 


743 


ural  stream  of  water  known  as  ............  run,  which  run 

was  for  many  years  an  open  and  unobstructed  waterway.     iJiat 
some  time  before  the  happening  of  the  injuries  hereinafter  com- 
plained of,  the  said  defendant,  the  mayor  and  city  council  of 
constructed  a  sewer  to  carry  off  all  the  water 

which"  theretofore  had  flowed  in  run,  as  well  as 

the  water  which  might  fall  and  run  therein.     Ihat  the  sewer 

so  built  in  the  bed  of run  by  the  defendant  was 

so  constructed  as  to  connect  with  an  existing  sewer  of  the  de- 
fendant.   That  in  building  the  said  sewer  m run, 

from  the  carelessness  of  the  defendant  and  the  want  of  ordinary 
care  it  did  not  provide  said  sewer  and  its  connecting  sewer 
with  sufficient  capacity  and  size  to  carry  off  the  waters  of 
run  as  well  as  the  rain  water  which  might  be 
expected  to*  flow  therein  and  the  waters  which  flow  in  the  con- 
necting sewer  with  which  the  run  sewer  was  at- 
tached That  by  the  exercise  of  ordinary  and  reasonable  care 
and  diligence  the  defendant  had  notice,  or  might  have  had 
notice  of  the  injuries  which  would  necessarily  be  inflicted  upon 
the  plaintiff  by  reason  of  the  insufficient  capacity  and  size  of 

the  said  sewer  with  which    run  sewer  connects. 

That  by  reason  of  the  said  insufficient  size  of  said  sewer  with 

^vhich run  sewer  connects,  it  fails  to  take  off  the 

water  which  drains  therein  when  the  said  sewer  is  burdened  by 
rain  water  which  flows  therein  in  addition  to  the  ordinary  flow 
of  water  in  said  sewer,  and  by  reason  of  the  insufficient  capacity 
of  said  sewer,  it  has  freciuently  overflowed  into  the  slaughter 
house  of  the  plaintiff  and  has,  from  time  to  time,  withm  the 
last  three  years,  frequently  overflowed  and  backed  up  in  the 
premises  of  the  plaintiff,  causing  him  serious  loss  and  damage, 
both  in  his  buildings,  to  his  business,  the  stock  of  meats  carried 
by  him  in  cold  storage,  and  the  machinery  and  equipment  used 
by  him  in  connection  with  his  said  business,  by  reason  whereof 
the  plaintiff  has  suffered  serious  loss  and  damage ; 

2.     And    for   that  ,    also    called  .'•••;• 

street,  is  a  public  highway  owned  by  the  said  corporation  de- 
fendant, the  mayor  and  city  council  of   ,  and  by 

reason  of  the  failure  of  the  said  defendant  to  use  proper  care 
and  diligence  in  caring  for  said  street,  it  has  failed  to  grade 
and  pave  the  same  and  to  place  gutters  in  said  street  to  carry 
off  the  waters  which  flow  therein  from  rain  and  other  sources, 
and  the  defendant,  well  knowing  this  and  well  knowing  that 
recently  other  streets  have  been  opened  up  connecting  with 
in  such  manner  that  large  quantities  of  water 

flow  from  other  streets  in  and  over   ,  and  said 

not  being  provided  with  gutters  and  other  means 
for  taking"  off  said  water,  large  quantities  of  water  flow  from 
other  streets  and  from over  and  across  the  prem- 
ises of  the  plaintiff  so  that  his  dwellings  and  buildings  thereon 
and  the  machinery  and  equipment,  and  the  stock  of  meats  car- 


744  ANNOTATED  FORMS  OP  PLEADING   AND  PRACTICE 

ried  by  the  plaintiff  on  said  premises,  have,   within  the  last 

years,  been  seriously  damaged,  and  the  plaintiff 

has  suffered  great  loss  and  damage. 
Wherefore,  he  claims  $ damages. 


1359  Public  improvement,  action 

An  injury  which  is  the  natural,  probable  and  necessary  result 
of  a  work  done  within  the  scope  of  legislative  authority  is  not 
actionable.^^  If  private  property  is  damaged  by  the  construc- 
tion of  a  public  improvement  and  no  provision  for  compensation 
is  made  by  the  municipality,  the  owner  of  the  property  has  a 
right  of  action  on  the  case  against  sucli  municipality  for  the  omis- 
sion of  its  duty  to  ascertain  the  damages,  if  any,  and  to  provide 
means  for  its  payment. ^"^'^  An  action  for  damages  occasioned 
by  a  public  improvement  is  maintainable  only  when  there  is  a 
direct  physical  disturbance  of  private  property,  such  as  prac- 
tically or  actually  affects  its  enjoyment  and  use,  causing  the 
owner  to  sustain  special  damages  with  respect  thereto  as  dis- 
tinguished from  a  mere  personal  inconvenience  or  injury  in  ex- 
cess of,  or  different  in  kind  from,  that  sustained  by  the  people 
of  the  whole  neighborhood  generally,  susceptible  of  proof  and 
capable  of  being  approximately  measured. ^"^  Mere  inconven- 
ience, expense  or  loss  of  business  occasioned  to  abutting  owners 
by  the  temporary  obstruction  of  a  public  street  and  the  conse- 
quent interference  with  their  right  of  access  to  other  property 
made  necessary  by  the  construction  of  a  public  improvement, 
gives  no  cause  of  action  against  a  municipality. ^"2  ji^  quasi 
public  corporation  is  liable  for  special  permanent  damages  done 
to  private  property  by  the  erection  of  a  bridge  over  a  navigable 
river;  but  not  for  such  damages  as  are  incident  to  and  shared 
by,  the  general  public.  ^*^^ 


99  Jones  V.  Sanitary  District,  252  Eigney  v.   Chicago,    102   111.   64,   78 
111.  600.  (1882);   Chicago  &  W.  I.  R.  Co.  v. 

100  Elgin    V.    Eaton,    83    111.    535,  Ayres,    106,    111.    511,    518    (1883); 
537    (1876);   Sec.  13,  art.  2,  Const.  Sec.  13,  art.  2,  Const.  1870. 

1870;    Beidler  v.   Sanitary  District,  102  Chicago  Flour  Co.  v,  Chicago, 

211  111.  628,  638  (1904).  243  111.  268,  271   (1910). 

101  Illinois     Central     R.     Co.     v.  103  Chicago    &    Pacific    R.    Co.    v. 
School  Trustees,  212  111.  406  (1904);  Stein,  75  111.  41,  45    (1874). 


CASE  745 

1360  Replevin  bond,  insufficient,  action 

A  sheriff  who  fails  in  his  duty  to  exercise  the  best  means  of 
securing  a  sufficient  bond  for  the  return  of  replevined  property, 
is  liable  to  an  action  on  the  case  to  the  party  injured. ^"^^ 

1361  Reversion,  action 

The  owner  of  premises  occupied  by  a  tenant  has  an  action  on 
the  case  for  an  injury  to  the  reversion  or  freehold.^^^ 

1362  School  schedule,  refusal  to  certify,  declaration  requisites 

In  an  action  against  school  directors  for  the  refusal  to  ex- 
amine and  certify  a  schedule  of  scholars  in  attendance  at  a 
school,  the  declaration  must  aver  that  the  plaintiff  presented  to 
his  directors  his  or  her  certificate  of  qualification  before  the  com- 
mencement of  school. ^'^*' 

1363  Seduction,  action 

An  action  on  the  case  for  seduction  is  appropriate,  notwith- 
standing the  fact  that  the  intercourse  was  accomplished  by 
force,  and  that  the  injury  may  be  made  the  subject  of  a  crim- 
inal prosecution. ^"^^  The  unlawful  intercourse,  whether  accom- 
plished with  or  without  force,  is  the  ground  of  an  action  for  se- 
duction. ^"^  A  husband  has  a  right  of  action  for  the  seduction 
of  his  wife  separate  and  distinct  from  her  right  of  action  for  the 
same  offense. ^"^ 

1364  Seduction,  parties 

An  action  for  seduction  of  a  minor  female  may  be  brought  by 
either  parent  or  guardian.  An  action  for  seduction  of  a  female 
of  full  age  may  be  maintained  by  the  father,  by  any  other  rela- 
tive authorized  by  her,  or  by  herself  in  her  own  name.^^^    In 

io<  People  V.  Core,  85  111.  248,  252  147,  151  (1872) ;  Watson  v.  Watson, 

(1877)  ;  Sec.  12,  c.  119,  Kurd's  Stat.  53  xMich.  168,  171   (1884). 

1909,  p.  1820.  108  Dalman    v.    Koning,    54    Mich. 

losHalligan     v.     Chicago,     Rock  320,    322    (1884);    Stoudt   v.    Shep- 

Island    R.    Co.,    15    111.     558,     560  herd,  73  Mich.  588,  593    (1889). 

(1854).  109  Johnston  v.  Disbrow,  47  Mich. 

100  Smith    V.    Curry,    16    111.    147,  59,62   (1881). 

148  (1854);  Sec.  176,  c.  122,  Hurd's  no  Watson    v.    Watson,    49    Mich. 

Stat.   1909,  p.  2024.  540,    544     (1883);     (10418),    C.  L. 

107  Kennedy    v.    Shea,    110    Mass.  1897   (Mich.). 


746  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

Michigan  a  woman  of  full  age,  whether  of  age  or  not  when  de- 
bauched, may  sue  in  her  name  for  the  seduction.^ ^^ 

1365  Seduction,  joinder  of  counts 

In  an  action  for  seduction  a  count  involving  an  assault  may- 
be joined  with  a  count  based  upon  enticing  the  plaintiff  for  the 
purpose  of  concubinage. '^- 

1366  Seduction,  declaration  requisites 

The  time  of  the  seduction  may  be  stated  in  the  declaration 
under  a  videlicit  and  any  seduction  may  be  proved  that  is  within 
the  statute  of  limitations.^^^  ^he  words  "seduction"  and  "de- 
bauching" may  be  used  interchangeably  in  an  action  for  seduc- 
tion of  a  servant  or  a  member  of  the  plaintiff's  family.^ ^^ 

Under  Michigan  statute,  the  declaration  for  seduction  should 
set  forth  the  natural  or  legal  relationship  of  the  plaintiff  to 
the  person  seduced.  The  declaration  need  not  allege  that  the 
seduced  female  is  the  plaintiff's  servant,  nor  need  it  allege  any 
loss  in  consequence  of  the  seduction,  as  is  required  at  common 
law.115  In  an  action  for  seduction  brought  upon  the  authority 
of  a  female  of  full  age,  the  declaration  must  allege  the  authority 
to  bring  the  action.  ^^^ 

SLANDER 

1367  Action,  nature  and  scope 

The  action  of  slander  is  transitory.^ ^^  Slander  is  not  main- 
tainable upon  anything  said  or  written  in  a  legal  proceeding 
which  is  pertinent  and  material  to  the  matter  in  controversy, 
the  same  being  privileged.^ ^^  Malice  is  an  essential  element  in 
an  action  for  slander.^ ^^  Words  which  are  not  in  themselves 
actionable  may  become  so  if  spoken  in  connection  with  a  per- 
son's business  or  occupation.^^o 

111  Watson  V.  "Watson,  53  Mich.  ne  Watson  v.  Watson,  49  Mich. 
178;    Stoudt  V.   Shepherd,   73   Mich.      544. 

596.  iiTCassem  v.  GaMn,  158  111.  30, 

112  Watson    V.    Watson,    49    Mich.      35  (1895). 

542;   Stoudt  v.   Shepherd,  73   Mich,  us  Spaids  v.  Barrett,  57  111.  289, 

597.  291   (1870), 

113  Johnston  v.  Disbrow,  47  Mich.  us  Huson  v.  Dale,  19  Mich.  17, 
61.  30    (1869). 

11*  Stoudt   V.   Shepherd,   73   Mich.  120  Xelson   v.   Borchenius,   52   111. 

591.  236,  237   (1869). 

115  (10418),  C.  L,,  1897;   Watson 
V.  Watson,  49  Mich.  543. 


CASE  747 


1368  Parties 


In  Illinois,  an  action  for  slander  of  or  personal  injuries  to  a 
married  woman  must  be  brought  in  her  own  name.^^i 

1369  Declaration  requisites,  proof 

In  an  action  for  slanderous  words  which  are  not  actionable 
per  se  the  innuendo  in  the  declaration  must  refer  to  some  fact 
or  facts  stated  in  the  inducement,  and  the  inducement  and  collo- 
quium must  warrant  the  innuendo. ^-^  The  omission  of  an  aver- 
ment that  the  defendant  maliciously  published  a  matter  is  avail- 
able upon  special  demurrer,  but  is  cured  by  verdict.^ 23  After  a 
plaintiff  proves  the  words  that  have  been  alleged  in  the  declara- 
tion, he  may  give  in  evidence,  for  the  purpose  of  showing  malice, 
the  uttering  by  the  defendant  of  other  slanderous  words  not 
charged  in  the  declaration  which  are  of  a  similar  import  to  those 
that  are  charged,^ ^^  provided  the  subsequent  words  or  libels  ex- 
pressly refer  to  those  which  are  the  subject  of  the  action  and 
constitute  no  distinct  calumny. ^25 

1370  Larceny,  Narr.  (D.  C.) 

The  plaintiff  sues  the  defendant  for  that  whereas,  the  plain- 
tiff at  the  time  of  the  committing  of  the  several  grievances  here- 
inafter mentioned  has  always  been  a  person  of  good  name, 
credit  and  reputation  and  for  many  years  has  been  in  the  busi- 
ness of  dealing  in  real  estate  in  the  city  of ,  District 

of  Columbia,  and  elsewhere.  That  the  said  defendant  contriving 
wickedly  and  maliciously  intending  to  injure  said  plaintiff  in 
his  good  name,  fame  and  credit  and  to  bring  him  into  public 
scandal,  infamy  and  disgrace  among  the  people  of  the  District 
of  Columbia  and  to  vex  and  harrass  the  said  plaintiff,  said  de- 
fendant did,  on,  to  Avit,  the day  of , 

19 . , ,  in  the  city  of   ,  District  of  Columbia,  in  a 

certain  conversation  with  one    of    

and  concerning  said  plaintiff  and  of  and  concerning  the  affairs 

of   falsely  and  maliciously  spoke  and  published 

of  and  concerning  said  plaintiff  in  the  presence  of  and  the  hear- 
ing to  said  and  divers  other  persons,  false,  scan- 
dalous and  defamatory  words,  that  is  to  say,  that  he,  meaning 

plaintiff,   had  gotten  away  with    dollars  of  the 

funds  of  the  said   and  that  he,  meaning  the  de- 

121  Hawver    v.    Hawver,    78    111,  123  Taylor   v.   Kneeland,   supra, 
412,  414   (1875).  124  Thompson  v.   Bowers,   1  Doug. 

122  Taylor  v.  Kneeland,    1    Doug.       321,  329  (Mich.  1841). 

67,   74    (Mich.   1843).  125  Taylor  v.   Kneeland,  supra. 


748  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

fendant,  had  located  about dollars  of 

funds,  meaning  and  intending  and  charging  thereby  that  the 
plaintiff  had  been  guilty  of  the  eliarge  of  larceny. 

By  means  of  the  committing  of  which  said  grievances,  the 
plaintiff  has  been  greatly  injured  in  good  name,  fanu'  and  rep- 
utation and  brought  into  public  scandal,  infamy  and  disgrace, 
iu  so  much  that  divers  good  and  worthy  citi/ens  have  by  reason 
of  the  grievances  aforesaid  suspected  and  believed  and  still  do 
suspect  and  believe  the  plaintiff"  to  be  guilty  of  the  larceny 
mentioned;  and  by  reason  of  the  committing  of  the  grievances 
from  thence  till  now  have  wliolly  refused  to  have  any  transac- 
tions or  business  dealings  with  the  plaiutill"  as  they  otherwise 
would  have  had,  to  the  damage,  etc. 

1371  Perjury,  Narr.  (111.) 

For  that  whereas,  before  the  committing  of  the  several 
grievances  by  the  said  defendant  hereinafter  mentioned,  a  cer- 
tain action  had  been  depending  before  ,  escjuire,  a 

justice  of  the  peace  within  and  for  the  county  of 

and  state  of  Illinois  aforesaid,   of  whieli  said  action  the  said 

justice  had  then  and  tiiere  jurisdiction,  to  wit,  at 

in  said  county,  wherein  the  defendant  in  this  suit  was  plaintiff, 
and  the  plaintiff  in  this  suit  was  defendant,   and  which  said 

action  had  then  and  there  been  lately  tried  by  the  said , 

justice  of  the  peace  as  aforesaid,  and  on  said  trial  the  said 
plaintiff  in  this  suit  had  been  and  was  examined  on  oath  (he, 
the  said  defendant  in  this  action,  then  antl  there  before  said 
oath  was  administered,  iiaving  waived  any  j)reliminary  oath, 
and  having  consented  tiuit  the  said  plaintiff  in  this  action  should 
be  examined  on  oath,  and  testify  in  said  cause),  in  a  matter  ma- 
terial to  the  issue  in  said  trial,  and  having  given  his  evidence 
as  a  witness  (as  by  the  laws  of  this  state  he  had  a  right  to  do), 
to  wit,  at ,  to  wit,  at  the  county  and  state  afore- 
said; yet,  the  said  defendant,  well  knowing  the  premises,  but 
greatly  envying  the  happy  state  and  condition  of  the  said  plain- 
tiff", and  contriving,  and  wickedly  and  maliciously  intending  to 
injure  the  said  plaintiff  in  his  good  name,  fame,  and  credit,  and 
to  bring  him  into  public  scandal,  infamy,  and  disgrace,  with 
and  amongst  all  his  neighbors,  and  other  good  and  worthy  citi- 
zens of  this  state,  and  cause  it  to  be  suspected  and  believed  by 
those  neighbors  and  citizens  that  he,  the  said  plaintiff,  had  been 
and  was  guilty  of  the  offenses  and  misconduct  hereinafter  men- 
tioned to  have  been  charged  upon  and  imputed  to  the  said  plain- 
tiff, or  any  other  such  offenses  or  misconduct,  and  to  subject 
him  to  the  pains  and  penalties  by  the  la"svs  of  this  state  made 
and  provided  against  and  inflicted  upon  persons  guilty  thereof, 
and  to  vex,  harass,  oppress,  impoverish,  and  wholly  ruin  him 

the  said  plaintiff,  heretofore,  to  wat,  on  the  day 

of ,  19 . . ,  at ,  to  wit,  at  the  county 


CASE  749 

and  state  aforesaid,  in  a  certain  discourse  which  he  the  said 
defendant  then  and  there  had  with  the  said  plaintiff,  of  and 
concerning  the  said  plaintiff,  and  of  and  concerning  the  said 
action,  and  of  and  concerning  the  evidence  of  him  the  said  plain- 
tiff', given  on  the  said  trial,  as  such  witness  as  aforesaid,  in  the 
presence  and  hearing  of  divers  good  and  worthy  citizens  of  this 
state,  then  and  there  in  the  presence  and  hearing  of  the  said 
last  mentioned  citizens,  falsely  and  maliciously  spoke  and  pub- 
lished to,  and  of  and  concerning  the  said  plaintiff,  and  of  and 
concerning  the  said  action,  and  of  and  concerning  the  evidence 
by  him  the  said  plaintiff'  given  on  the  said  trial  as  such  witness 
as  aforesaid,  these  false,  scandalous,  malicious,  and  defamatory 
words  following,  that  is  to  say: 

You  (meaning  the  said  plaintiff)  swore  falsely,  (meaning 
that  he,  the  said  plaintiff),  in  giving  liis  evidence  as  such  wit- 
ness, on  the  said  trial,  before  said  justice  of  the  peace  as  afore- 
said, had  committed  wilful  and  corrupt  perjury.^^c  By  means  of 
which  scandalous,  malicious  and  defamatory  words,  so  spoken 
and  publislied,  the  plaintiff  has  fallen  into  disgrace,  contempt 
and  infamy  and  has  been  greatly  injured  in  his  good  name  and 
reputation,  and  divers  good  and  worthy  persons  have,  by  rea- 
son of  the  committing  of  the  said  grievance,  suspected  and  be- 
lieved and  still  do  suspect  the  plaintiff  guilty  of  the  words 
spoken  and  refuse  to  have  any  dealings  or  association  with 
him,  as  they  otherwise  would  have  had ;  and  the  plaintiff  has 
been  and  is  otherwise  injured,  to  the  damage,  etc, 

1372  Woman's  character,  Narr.  (D.  C.) 

The  plaintiff, ,  being  a  woman  and  having  a  reputa- 
tion for  chastity  and  virtue,  and  having  always  borne  the 
reputation   for  chastity   and  virtue   among  the   people  in   the 

neighborhood  in  which  she  resides,  sues  the  defendant, , 

for  that  the  said  defendant,  well  knowing  said  fact,  did  falsely, 
maliciously  and  intending  to  injure  plaintiff  in  her  good  name, 
fame,  and  reputation,  and  to  bring  her  into  public  scandal  and 
disgrace  and  to  cause  it  to  be  believed  that  she,  the  said  plain- 
tiff was  an  unfit  and  improper  person  to  associate  with  persons 
of  good  fame,  and  to  subject  her  to  disgrace  and  degradation, 

on,  to  wit,  the day  of ,  in  the  District  of 

Columbia,  in  certain  discourses  which  the  defendant  then  and 
there  had  of  and  concerning  plaintiff,  in  the  presence  and  hear- 
ing of  divers  persons  did  falsely,  maliciously  and  wickedly,  in 
the  presence  of  and  hearing  of  said  divers  persons,  speak  and 
publish  of  and  concerning  the  said  plaintiff,  and  then  and  there 
intending  that  said  persons  who  were  at  said  time  present  and 
heard  said  charge  should  hear,  and  who  then  and  there  did  so 

126  Sanford  v.  Gaddis,  13  111.  329, 
330    (1851). 


750  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

understand  the  said  defendant,  the  false,  scandalous,  malicious 
and  defamator>'   words   following,   that   is    to  say   that   she   is 

,  meaning  that  the  plaintitt'  was  a  prostitute  without 

character  and  not  legitimated;  by  means  of  wliieli  scandalous, 
malicious  and  defamatory  words,  so  spoken  and  published,  the 
plaintiff  has  fallen  into  disgrace,  contempt  and  infamy  and  has 
been  greatly  injured  in  her  good  name  and  reputation,  and 
divers  good  and  worthy  persons  have,  by  reason  of  the  commit- 
ting of  the  said  grievance,  suspected  and  believed  and  still  do 
suspect  the  plaintiff  guilty  of  the  words  so  spoken  and  refuse 
to  have  any  dealings  or  association  with  her,  as  they  otherwise 
would  have  had  ;  and  plaintiff  has  been  and  is  otherwise  injured, 
to  the  damage,  etc. 


1373  Sparks  from  locomotive,  Narr.  (111.) 

P'or  tluit  whereas,  the  defendant  is  a  corporation  and  was  on, 

to  wit,  the  day  of ,  19.  .,  and  for  a  long  time  prior 

thereto  had  been  possessed  of  a  line  of  railroad,  the  general 
direction  of  which  extended  north  and  south  through  the  vil- 
lage of ,  in  the  county  of and  state  of 

Illinois;  that  said  defendant  was  also  possessed  of  divers  loco- 
motive engines  and  trains  of  cars  attached  thereto,  which  it 
used  and  operated  on  said  line  of  railroad.  That,  on,  to  -wit,  the 
date  aforesaid,  he  was  owner  and  possessor  of  a  certain  general 
stock  of  goods  consisting  of  dry  goods,  clothing,  hats,  caps, 
boots,  shoes,  harness,  hardware,  groceries,  glassware,  tinware, 
queensware,  wooden  ware,  cutlery,  stoves,  showcases,  notions, 
soaps,  store  fixtures,  and  other  goods,  contained  in  a  certain 
frame  building  situated  and  being  on  the  following  described 
parcel  of  land,  to  wit,  (Set  forth  legal  description)  in  the  vil- 
lage of ,  in  the  county  of and  state  of 

Illinois;  that  said  general  stock  of  goods  was  of  the  value  of, 

to  wit, dollars ;  and  that  said  building  in  which  the 

said  stock  of  goods  was  contained,  was  the  distance  of,  to  wit, 
feet  east  of  said  railroad. 

Plaintiff  further  avers  that,  on,  to  wit,  about 

o'clock  in  the noon  of  the  date  aforesaid  defendant 

carelessly  and  negligently  operated  one  of  its  certain  locomotive 
engines  and  trains  of  cars  attached  thereto,  which  was  going 
south  upon  said  line  of  railroad,  and  which  said  locomotive  w^as 
defective;  that  by  reason  of  such  defect  in  said  locomotive  en- 
gine, sparks  and  brands  of  fire  were  thrown  from  said  locomotive 
engine  to  and  against  and  upon,  to  wit,  the  building  known  as 

the building,  which  was  situated,  to  wnt,  the  distance 

of feet  east  of  defendant's  said  railroad  and 

feet  south  of  the  said  building  containing  plaintiff's  said  stock 
of  goods;  and  that  said  fire  was  communicated  from  said 
building  to  the  buildings  situated  between  the  said 


CASE  751 

building  and  the  building  containing  plaintiff's  said 

stock  of  goods,  thence  to  the  said  building  containing  plaintiff's 
said  stock  of  goods,  and  then  and  there  wholly  destroying  and 
consuming  said  building  and  plaintiff's  said  stock  of  dry  goods, 
clothing,  boots,  shoes,  hats,  caps,  harness,  groceries,  glassware, 
tinware,  queensware,  woodenware,  cutlery,  stoves,  show  cases, 
notions,  soaps,  store  fixtures,  then  and  there  situated  and  con- 
tained in  said  building  situated  on  said  described  parcel  of  land 
as  aforesaid ;  and  which  said  stock  of  goods  was  of  the  value  of 
to  wit,   dollars.     Wherefore,  etc. 

(Maryland) 

For  that  the  plaintiff  having  purchased  a  farm,  known  as  the 

farm,  in  the    election  districts  of 

county,  Maryland,  and  received  a  deed  for  the 

same,    dated    the    day    of    ,    19 .  . , 

entered   upon   and   took  possession   of   the   timber  land   lying 

east  of   creek,  south  of  the    

road  and  west  of  the   property  as  pointed  out  by 

under  and  by  virtue  of  his  said  purchase  and  was 

in  possession  thereof  as  aforesaid  at  the  time  of  the  wrong  of 
the  defendant  hereinafter  complained  of;  that  the  defendant 

owned  a  railroad  between  the  town  of in  the  state 

of and  the  city  of ,  in  the  state  of  Mary- 
land, which  passed  through  said county,  to  the  plain- 
tiff's said  farm;  that  large  quantities  of  dry  grass,  weeds  and 
bushes  were  negligently  suffered  by  the  defendant  to  be  and  re- 
main on  its  right  of  way  along  its  said  railroad  near  the  plain- 
tiff's said  farm;  that  the  defendant  operated  over  its  said  rail- 
road along  its  said  i-ight  of  way  (among  other  things)  locomo- 
tive engines  containing  fire  and  burning  matter;  and  that  the 
defendant  so  negligently  and  unskill fully  managed  one  of  its 
said  engines  and  the  fire  and  burning  matter  therein  contained, 
while  operating  said  engine  over  its  said  railroad  along  its  said 
right  of  way  near  the  plaintiff's  said  farm,  that  sparks  from 
said  fire  and  portions  of  said  burning  matter  escaped  and  flew 
from  said  engine  and  set  on  fire  said  weeds,  grass  and  bushes, 
which  was  thence  communicated  to  the  plaintiff's  said  timber, 
and  large  portions  thereof  were  burned  and  greatly  injured  and 
destroyed,  to  the  plaintiff's  damage. 

(Mississippi) 

That  on  or  about  the    day  of    and 

prior  thereto,  the  defendant  company  was  a  com- 
mon carrier  of  passengers  and  freight  for  hire  between 

^lississippi  and  Mississippi,  both  places  being  lo- 
cated in  said county,  Mississippi ;  and  that  between 

these  points  in  said  county  the  defendant  railway  company's 


752  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

line  of  railroad  was  a  small  station  called which  said 

station    the   defendant    company    maintained   as   a 

freight  and  passenger  station,  carrying  passengt-i-s  and  freight 
to  and  from  said  station  for  hire.     Tliat  plaintiff  had  prior  to 

and  on  said  date  placed  at  and  near  said    station 

near  the  defendant  railway  company's  riglit  of  way,  a  large 
quantity  of  stuff  commonly  called  staves,  which  was  unfinished 
timber  from  which  barrel  headings  are  made ;  that  plaintiff 
had  placed  these  timbers  or  headings  near  said  station,  as  above 
alleged  and  adjacent  to  said  defendant  comj^any's  right  of  way, 
as  aforesaid,  for  the  purpose  of  sbipping  them  over  the  defend- 
ant company's  line  of  railroad  from   to 

Mississippi  and  from  thence  over  the   railroad  and 

other  points. 

That  the  defendant  company  used  engines  in  the  operation  of 
its  trains  and  that  said  engines  were  not  properly  constructed; 
that  the  smokestacks  of  said  engines  were  not  j)roj)erly  provided 
with  spark  arresters  and  cones  to  prevent  the  throwing  of 
sparks  in  the  operation  of  said  train ;  and  that  said  smoke- 
stacks on  the  date  aforesaid  and  prior  thereto  emitted  great 
volumes  of  sparks  of  large  dimensions  when  said  trains  were 
in  operation. 

That  the  defendant  company  had  carelessly  and  negligently 
failed  to  provide  the  said  smokestacks  of  any  of  its  said  engines 
with  spark  arresters  and  cones;  or  if  it  had  in  fact  provided 
any  spark  arresters  at  all  they  were  so  imperfect  and  so  negli- 
gently and  carelessly  constructed  that  they  permitted  great 
volumes  of  live,  burning  coals  of  great  size  to  be  emitted  from 
said  smokestacks  endangering  property  along  its  right  of  way. 

Plaintiflt'  further  avers  that  defendant  company  negligently 
and  carelessly  failed  and  refused  to  burn  coal  in  the  operation 
and  running  of  any  of  its  said  trains,  but  carelessly  and  negli- 
gently used  and  burned  wood  and  fat  pine  thereby  adding  to  the 
volume  and  increasing  the  size  of  the  sparks  emitted  from  said 
smokestacks  in  the  operation  of  its  trains;  thereby  increasing 
the  danger  to  plaintiff's  property  along  and  adjacent  to  its  right 
of  way  as  above  alleged. 

Plaintiff  alleges  that  on  or  about  the  date  aforesaid  the  defend- 
ant company  was  operating  its  trains  on  its  said  line,  as  afore- 
said,  and  that  its  engine   number    was  pulling  a 

heavy  train  loaded  with  by station 

towards and  that  as  said  engine  passed 

station  thus  heavily  loaded,  as  aforesaid ;  that  said  defendant 
company  by  its  employees  so  carelessly  and  negligently  handled 
and  operated  said  engine  that  they  caused  said  engine  to  exhaust 
heavily  as  it  passed  by  said  station  and  by  plaintiff's  staves  or 
headings  as  aforesaid ;  and  that  because  of  their  said  negligent 
handling  of  said  engine,  because  of  the  unfit  condition  of  said 
engine  as  aforesaid  and  because  of  the  defendant  company's 
negligence  and  carelessness  in  not  providing  the  smokestacks  of 


CASE  753 

said  engine  number with  a  spark  arrester  and  cone 

to  prevent  the  emission  of  sparks  as  aforesaid,  and  because  of 
defendant  company's  careless  and  negligent  use  of  the  wood 
and  fat  pine  in  firing  said  machinery  and  engine,  as  aforesaid, 
a  great  volume  of  live  and  burning  coals  of  large  size  was  emitted 
from  said  smokestacks  and  set  fire  to  plaintiff's  staves  and  head- 
ings, from  which  a  large  quantity  of  said  staves  or  headings 
were  burned  and  totally  destroyed;  and  that  from  said  fire, 
which  was  a  direct  result  of  the  defendant  company's  careless- 
ness and  negligence,  as  aforesaid,  plaintiff  lost  the  following 
amount  of  staves  or  headings,  to  wit:  (Insert  itemized  list) 
Wherefore,  etc. 

1374  Sparks  from  traction  engine,  Narr.  (Mich.) 

For  that  whereas,  on,  to  wit,  the day  of 

19.  .,  said  plaintiff  was  the  owner  in  fee  simple  of  (Give  legal 
description  of  property)  with  the  frame  buildings  thereon  situ- 
ated, to  wit,  one story  frame  house   by 

feet    with    wing    by    ;   one 

story  frame  house  by feet, 

with  wing  or  kitchen, by feet,  one  wood- 
shed,     by feet ;  one  toolshed 

by feet  containing  logging  chains  (State  other  eon- 
tents)  ;  said  buildings  and  personal  property   being  of  great 

value,  to  wit,  all  of  the  value  of  dollars ;  and  said 

defendant  on  the  day  and  year  aforesaid,  was  the  owner  and 
was  running  and  operating  a  traction  engine,  which,  when  fired 
up,  would  run  by  its  own  power ;  that  defendant,  in  running 
and  operating  said  steam  traction  engine  in  and  along  the  pub- 
lic highways  used  large  fires  which  emitted  and  gave  off  large 
quantities  of  sparks  of  fire  through  the  smokestack  of  said 
engine. 

And  whereas,  at  the  time  of  the  committing  of  the  grievances 
hereinafter  set  forth,  it  became  and  was  the  duty  of  defendant 
to  have  used  upon  said  smokestack,  a  hood  or  spark  arrester, 
which  would  have  prevented  the  escape  of  sparks  of  fire,  or  in 
some  other  way  to  have  prevented  their  escape,  so  that  when 
the  said  defendant  was  running  said  engine  along  the  highways 
in  front  of  plaintiff's  premises  and  buildings,  fire  would  not 
have  been  communicated  by  sparks  from  defendant's  traction 
engine  to  the  aforesaid  property  of  the  plaintiff.  But  the  said 
defendant  not  regarding  his  duty  in  that  behalf,  did  not  have 
a  hood  or  spark  arrester  on  said  engine  sufficient  to  prevent  the 
escape  of  sparks  of  fire,  or  did  not  in  any  way  prevent  sparks  of 
fire  from  escaping  from  the  smokestack  of  said  engine. 

And    plaintiff    avers    that,    to   wit,    the    day    of 

the  said  defendant,  by  his  agent  and  servant  was 

running  and  operating  said  traction  engine  in  and  along  the 
public  highway  in  front  of  plaintiff's  premises,  without  using 


754  ANNOTATED    FORMS   OF    PLEADING   AND    TKACTICE 

any  adequate  means  to  prevent  escape  of  sparks  of  fire  from 
the  smokestack  caused  the  same  to  be  stopped  in  front  of  and 

within   feet  of  plaintiff's  buildings,  and  the  sparks 

of  fire  from  the  smokestack  of  said  engine  were  thrown  upon  the 
plaintiff's  aforesaid  buildings  and  said  buildings  together  with 
the  personal  property  aforementioned,  were  thereby  set  on  fire 

and  totally  consumed,  to  the  plaintiff's  damage  of 

dollars  and  therefore  he  brings  suit. 

1375  Strikes,  action 

Special  ownership  of  property  destrojxd  by  mobs  and  riots 
is  sufficient  to  give  a  right  to  maintain  an  action  under  the  i\Iobs 
and  Riots  act  of  1887.^2?  fhe  liability  for  damages  sustained 
from  mobs,  etc.,  rests  upon  public  policy  and  not  upon  the  doc- 
trine of  negligence.  ^28 

1376  Strikes,  Narr.  (HI.) 

For  that  whereas,  on,  to  wit,  the day  of , 

19..,  at   ,  to  wit,  in  the  county  aforesaid,  plaintiff 

was,  and  for  a  long  time  prior  thereto  had  been  the  owner  of  the 
real  estate  and  ....  story  brick  building  located  and  being  at 

the corner  of and streets  in  the 

city  of ;  that  said  real  estate  and  building  were  then  and 

there  occupied  by  K  as  tenant  of  the  phiintiff  under  a  lease 
which  provided  that  the  plaintiff  should  replace  in  said  building 
any  and  all  of  the  plate  glass  therein  contained  that  might  or 
should  become  broken  or  destroyed. 

Plaintiff    further    avers    that    several    weeks    prior    to    the 

day  of ,  19.  .,  the  employees  of  the  said 

K  went  out  on  a  strike  and  that  said  strike  and  controversy  be- 
tw^een  the  employees  of  said  K  and  said  company  had  continued 

with  great  virulence  and  still  continuing  on  said    

day  of ,  19.  .  ;  that  as  a  result  of  said  strike  and  the 

endeavors  of  K  to  employ  other  persons  in  the  place  of  the 
strikers,  the  place  was  picketed  by  the  striking  employees  and 
many  violent  acts  were  perpetrated,  in  so  much  that  said  build- 
ing and  premises  and  the  employees  of  K  had  to  be  guarded  by 
the  police  of  the  defendant  city  in  order  to  protect  said  building 
and  premises  from  damage  and  the  employees  from  injury;  of 
all  of  which  the  defendant  city  had  notice. 

Plaintiff  further  avers  that,  on,  to  wit,  the day 

of 19. .,  in  the  afternoon  of  said  day,  the  defendant 

city    negligently    and    carelessly    failed    to    furnish    sufficient 

127  Pittsburg,  Cincinnati,  Chicago  128  Sturges    v.    Chicago,    237    111. 

&   St.   L.   Ry.    Co.    V.   Chicago,    242       46,  52   (1908). 
111.  178,  187    (1909). 


CASE  755 

policemen  to  guard  and  protect  said  building  and  premises  or 
to  otherwise  guard  and  protect  the  same,  and  that  while  the  said 
building  and  premises  were  so  insufficiently  guarded  and  pro- 
tected, a  large  mob  or  riot  of  more  than  twelve  persons  as- 
sembled around  about  said  building  in  the  streets  and  on  the 
sidewalks  and  with  brickbats,  stones  and  other  missiles,  broke 
and  destroyed  the  following  panes  of  plate  glass,  contained  in 
said  building,  viz.:  (Describe  property)  that  the  value  of  said 
plate  glass,  so  broken  and  destroyed,  and  the  damage  to  said 

building  was  then  and  there  the  sum  of ($ ) 

dollars. 

Plaintiff  further  avers  that  such  destruction  and  injury  was 
not  in  any  way  occasioned  or  aided,  sanctioned  or  permitted  by 
the  carelessness,  neglect  or  wrongful  act  of  the  plaintiff  or  of 
his  tenant,  K,  and  that  both  plaintiff  and  said  K  did  everything 
in  their  power  and  used  all  reasonable  diligence  to  prevent  such 
damage. 

Plaintiff  avers  that  afterwards,  on,  to  wit,  the   

day  of ,  19. .,  and  within  thirty  days  after  the  dam- 
age aforesaid  was  done,  he  presented  to  the  defendant  city  of 

,  notice  of  his  claim  for  damages,  in  and  b}'-  said 

notice  notifying  the  defendant  city  of ,  that  he 

was  the  owner  of  the  building  at  the    corner  of 

and   streets  in  the  city  of  , 

then  and  there  occupied  by  K  as  tenant ;  that  on  the 

day  of ,  19.  . ,  the  plate  glass  contained  in  said  build- 
ing was  broken  in  consequence  of,  and  by  a  mob  or  riot  com- 
posed of  more  than  twelve  persons,  as  folloAvs  (Describing  the 
property  as  hereinbefore  set  forth)  ;  that  the  damage  and  de- 
struction was  not  occasioned  by,  or  in  any  way  aided,  sanc- 
tioned or  permitted  by  the  carelessness,  neglect  or  wrongful 
act  of  the  plaintiff,  and  that  he  used  all  reasonable  diligence  to 
prevent  such  damage;  that  the  damage  done  amounted  to 
($ )  dollars ;  and  that  he  claimed  and  de- 
manded from  the  defendant  city  of ,  three-fourths 

of  said  sum,  or  the  sum  of   ($ )    dollars, 

pursuant  to  the  statute  in  such  case  made  and  provided. 

Plaintiff'  further  avers  that  the  defendant  city  of 

failed  and  refused  to  pay  to  the  plaintiff  said  sum  of 

($ )   dollars,  or  any  part  thereof,  and  still  refuses  so 

to  do,  to  the  damage  of  the  plaintiff  of ($ ) 

dollars,  and  therefore  he  brings  suit  in  accordance  with  the 
form  of  the  statute  in  such  case  made  and  provided. 

h 

For  that  whereas,  to  wit,  on  the day  of , 

19.  .,  said  plaintiff  was  a  corporation  engaged  in  the  manufac- 
ture and  sale  of  soap,  with  a  large  and  extensive  mail  order 
business  by  and  through  which  said  product  was  disposed  of. 


756  ANNOTATED   FORMS  OF   PLEADING    AND   PRACTICE 

That  on  the  day  and  year  last  aforesaid  the  said  plaintiff  was 
possessed  as  of  its  own  property  of  a  larpt;  <iuantity  of  goods, 
merchandise,  supplies  and  property,  iiichuling  the  following  de- 
scribed property,  to  wit:  (Give  itemized  statement  of  property 
destroyed  with  amount  of  each  item)  of  great  value,  to  wit,  of 

the  value  of  $ ,  which  was  then  and  there  located  and 

situate  at,  to  wit,  in  the  building  known  as  tlie  rear  of 

street  within  the  territorial  limits  of  the  said  city 

of  

And  the  plaintiff  alleges  that,  on,  to  wit,  the  (hiy  and  year 

aforesaid,  and  within  the  corporate  limits  of  the  city  of , 

aforesaid,  a  large  number  of  persons,  of  the  number  of  more 

than  twelve,  and  of  the  number  of,  to  wit,  persons, 

did  riotously  and  tumultuously  and  unlawfully  and  wrongfully 
assemble  together  of  their  own  free  will  and  authority,  with 
the  common  intent  mutually  to  assist  each  other  against  anyone 
who  might  offer  resistance  to  their  designs,  and  with  the  common 
intent  and  design  to  unlawfully  enter  upon  the  said  i)remi.ses 
of  plaintiff,  at  the  place  aforesaid,  to  unlawfully  and  wrongfully 
connnit  damage  and  waste  to  plaintiff's  said  property  afore- 
said ;  and  then  and  there,  without  any  right  or  authority,  the 
said  assemblage  of  persons  did  so  congregate  as  aforesaid,  with 
the  conunon  design  as  aforesaid,  antl  did  then  and  there,  in  the 
furtherance  of  such  common  design,  unlawfully  enter  upon  the 
plaintiff's  said  premises  at  the  place  aforesaid,  in  the  execution 
of  their  private  designs,  and  did  then  and  there  in  a  riotous 
and  tunniltuous  manner  commit  waste  and  damage  to  the  said 
property  of  plaintiff'  and  wholly  destroy  the  said  property  of 
plaintiff",  and  render  the  said  property  of  no  value  whatsoever, 
to  wit,  in  the  building  and  at  the  time  and  place  aforesaid. 

That  said  injury  and  destruction  and  tlamage  was  not  occa- 
sioned or  in  any  way  aided,  sanctioned  or  i)ermitted  by  any 
carelessness,  neglect  or  wrongful  act  on  the  part  of  the  said 
plaintiff"  or  its  agents,  or  through  any  neglect  on  the  part  of  said 
plaintiff'  or  its  agents,  to  use  reasonable  diligence  to  prevent  said 
injury  and  destruction;  and  said  plaintiff  avers  that  within 
thirty  days  next  after  the  time  of  said  damage  and  destruction 
of  said  property  said   plaintiff  on  a   certain   day,   to   wit,  the 

day  of   ,  19.  .,  gave  due  notice  to  said 

defendant  of  said  damage  and  destruction  and  then  and  there, 
on,  to  wit,  the  day  and  year  last  aforesaid,  demanded  of  said 
defendant  payment  of  three-fourths  of  the  amount  of  damages 
sustained  by  said  plaintiff"  by  reason  of  such  injury  and  destruc- 
tion, three-fourths  of  the  sum  of  (.$.* )  dol- 
lars,   to    wit,    the    sum    of   ($ )   dollars, 

whereby,  and  by  reason  of  the  premises,  and  by  force  of  the 
statute  of  the  state  of  Illinois  in  such  case  made  an  provided,  it 

then  and  there,  to  wit,  on  the   day  of  , 

19. .,  at,  to  wit,  the  county  aforesaid,  became  and  was  the  duty 
of  said   defendant  to   pay   to   said   plaintiff  the   said   sum   of 


CASE  757 

($ )  dollars ;  yet  the  said  defendant,  on, 

to  wit,  the  day  and  year  last  aforesaid,  at  the  county  aforesaid, 
wrongfully  neglected  and  refused  to  pay  said  plaintiff  the  said 

sum  of ($ )  dollars,  or  any  part  thereof, 

by  reason  of  which  said  wrong  and  neglect  said  plaintiff  hath 

suffered  damages  in  a  large  sum,  to  wit,  the  sum  of 

($ )  dollars,  wherefore,  it  brings  its  suit,  etc. 

1377  Telegrams,  negligent  transmission,  action 

A  telegi-aph  company  is  liable  for  all  direct  damages  which 
result  from  the  negligent  failure  to  transmit  a  message,  as  writ- 
ten, within  a  reasonable  time,  unless  the  negligence  is  in  some 
way  excused,  where  the  message,  as  written  and  read  in  the 
light  of  all  known  usage  in  the  commercial  correspondence,  rea- 
sonably informs  the  operator  that  the  message  is  one  of  business 
importance  and  discloses  the  transaction  so  far  as  is  necessary 
to  accomplish  the  purpose  for  which  it  is  sent.^-^ 

1378  Telegrams,  negligent  transmission,  Narr.  (Miss.) 

That  the  plaintiff  is  a  resident  of ,  county,  Missis- 
sippi; that  the  defendant  is  a  telegraph  and  cable  company 
engaged  in  the  transmission  of  messages  from  points  in  various 
portions  of  tiie  United  States  and  in  foreign  countries;  that  it 
has  a  regular  office  and  agents  in  county,  Missis- 
sippi, on  whom  service  of  process  may  be  had. 

Tiiat  the  plaintiff  is  engaged  in  buying  and  selling  spot  cot- 
ton ;  that  he  keeps  on  hand  spot  cotton  for  sale  to  the  spinners 
of  this  country  and  in  foreign  cities;  that  having  on  hand  spot 
cotton  for  sale  upon  the  day  of  he  de- 
livered to  the  a  certain  message  on  said  date  ad- 
dressed to in  tiie  following  words :  (Set  forth  mes- 
sage in  haec  verba). 

That  said was  a  broker  in  said engaged 

in  tiie  sale  of  spot  cotton ;  that  the  plaintiff'  had  made  many  sales 
of  actual  spot  cotton  as  aforesaid;  that  the  said  defendant  com- 
pany has  transmitted  many  messages  from  the  plaintiff  to  the 

said and  other  cotton  buyers  in  foreign  cities;  that 

it  is  well  ac(|uainted  through  its  officers  and  agents  with  the 
business  carried  on  by  the  plaintiff'  and  is  thoroughly  aware  of 
the  importance  of  messages  delivered  to  it  by  the  plaintiff  for 
transmission ;  that  the  plaintiff'  in  person  delivered  said  mes- 
sage in  the  city  of to  the  agent  of  said  defendant 

company  at o'clock  in noon  on  advising 

129  Providence  -  Washington  Ins. 
Co.  V.  Western  Union  Tel.  Co.,  247 
111.  84,  91    (1910). 


758  ANNOTATED  FORMS  OP   PLEADING   AND  PRACTICE 

the  agent  of  said  eompauy  oT  the  contents  of  said  message,  the 
same  being  in  cipher,  and  the  said  phiintilf  advising  the  defend- 
ant's agent  of  the  importance  of  tiie  same  and  the  purpose  of 
sending  the  same  and  the  damage  which  would  accrue  to  the 
plaintiff  by  reason  of  any  delay  in  transmission  and  delivery  of 
said  message. 

That  the  defendant  through  the  general  conduct  of  the  busi- 
ness was  well  aware  of  said  fact;  that  the  defendant's  agents 
and  servants  represented  to  the  plaintiff  that  within  about 
minutes  said  message  would  be  transmitted  and  de- 
livered to  its  address;  that  the  plaintiff"  paid  all  proper  charges 
upon  said  message;  that  it  was  the  duty  of  the  defendant  to 
transmit  and  deliver  the  same  within  a  reasonable  time,  and 
that minutes  would  have  been  a  reasonable  time- 
Plaintiff,  however,  alleges  and  avers  that  said  message  was 
unreasonably  delayed;  that  it  was  not  delivered  to  its  destina- 
tion until  o'clock  in  the   noon,  after  the 

close  of  the  markets  of  said  day ;  that  the  failure  to  deliver  said 
message  was  the  result  of  gross  and  willful  negligence  on  the 
part  of  the  agents  and  servants  of  said  defendant  eomi)any; 
that  upon  the  next  morning  the  price  of  cotton  had  declined; 
that  had  the  defendant  delivered  said  message  any  time  during 

the  day  of said  cotton  would  have  been  disposed  of 

and  could  have  been  disposed  of  at but  that  on  account  of 

said  delay,  the  plaintiff  was  under  the  necessity  of  selling  said 

cotton  the  following  day  at ,  making  a  loss  of 

per  bale,  thereby  entailing  upon  the  plaintiff  a  loss  of 

dollars;  that  all  of  said  loss  was  sustained  solely  on 

account  of  the  negligence  and  willful  conduct  of  the  defendant  as 
aforesaid;  that  due  and  timely  notice  was  given  to  the  <lefendant 
of  said  claim  for  damages  and  payment  of  the  same  has  often  been 
demanded,  but  that  the  defendant  fails  and  refuses  to  pay  said 
claim,  or  any  part  thereof.     Wherefore,  etc. 

TRANSPORT.VTION 

1379  Bill  of  lading,  limitation 

At  common  law  and  under  United  States  statutes  the  initial 
common  carrier,  engaged  in  interstate  commerce,  who  receives  a 
shipment  to  be  made  beyond  his  line  is  liable  for  damages  to 
the  shipment  caused  by  any  carrier  over  whose  line  the  shipment 
passes,  from  the  time  it  is  delivered  until  its  delivery  to  the 
consignee  at  the  point  of  final  delivery.^^*^  A  bill  of  lading  is 
a  written  acknowledgment  of  the  receipt  of  goods  and  also  an 
agreement  for  a  consideration  to  transport  and  deliver  the  goods 

130  Fry  V.  Southern  Pacific  Co.,  Interstate  Commerce  act  (U.  S, 
247   111.   564,  573    (1910);    Sec.   20,       Comp.  Stat.   1901,  pp.  31,  69). 


CASE  759 

at  the  specified  place  to  a  person  therein  named,  or  his  order.  A 
limitation  that  the  carrier  shall  not  be  liable  beyond  its  own 
lines  is  valid  in  Illinois,  in  that  part  of  the  bill  of  lading  which 
constitutes  an  agreement  to  deliver  the  goods  to  the  next  car- 
rier to  be  carried  to  its  destination;  but  the  burden  is  on  the 
carrier  to  show  by  evidence  other  than  that  contained  in  the 
bill  of  lading  that  the  limitation  of  the  common  law  liability 
was  understandingly  assented  to  and  the  risk  assumed  by  the 
shipper,  regardless  of  whether  the  bill  of  lading  or  contract 
of  shipment  consists  of  one  or  more  instruments.  The  statute 
which  prohibits  common  carriers  to  limit  their  common  law- 
liability  has  reference  to  and  renders  void  only  that  portion 
of  the  bill  of  lading  which  acknowledges  the  receipt  of  the 
property. ^^^  The  right  of  a  railroad  company  to  limit  its  lia- 
])ility  by  contract  does  not  extend  to  liability  for  its  gross  neg- 
ligence or  willful  misconduct ;  and  a  limitation  in  a  bill  of  lading 
which  attempts  to  limit  liability  beyond  the  legitimate  scope 
is  void  as  against  public  policy.^^^ 

1380  Jurisdiction 

State  courts  have  concurrent  jurisdiction  with  Federal 
courts  in  cases  arising  under  section  20  of  the  Interstate  Com- 
merce act  of  1887,  where  the  amount  exceeds  two  thousand  dol- 
lars •  in  cases  involving  less  than  that  sum,  the  state  courts  alone 
have  jurisdiction.  And  this  jurisdiction  extends  to  municipal 
courts.^'^'^ 

1381  Cattle,  feeding  and  watering,  action 

A  common  carrier  is  liable  for  the  failure  to  provide  suit- 
able and  safe  facilities  for  watering  and  feeding  stock  while 
in  transit,  and  of  this  liability  it  cannot  relieve  itself  by  con- 
tract.134 

131  Illinois  Match  Co.  v.  Chicago,  i^sFrj  v.  Southern  Pacific  Co., 
E     I.    &    P.   Ry.   Co.,    250    111.    396,       247  111.  575,  578. 

400,  402    (1911);    Sec.  33,   Fencing  i34  Chesapeake  &   Ohio  Ey.  Co.  v. 

and  Operating  Railroads  act    (Par.       American    Exchange    Bank,    92    Va. 
96,    c.    114,    Kurd's    Stat.    1909,    p.       495,  500    (1896). 

1755). 

132  Fry    V.    Southern    Pacific    Co., 

247  111.  574. 


760  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

1382  Cattle,  injured  and  lost,  Narr.  (Va.) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the   

day  of ,  in  the  year  19.  .,  the  said  defendants  were 

common  carriers,  engaged  in  carrying  live  stock,  and  animals 

from  a  point  in  the  state  of to  a  point  in  tlie  state 

of  Virginia,  and  the  plaintiff  was  a  di-aler  in  liorses  and  otlicr 

animals  in  the  city  of ,  in  the  state  of  \'irginia,  and 

on  the  day  and  year  aforesaid,  the  defendant,  the  

company,  received  of at  the in , 

a  carload  of   horses,  which  horses  were  owned  by 

and  were  the  property  of  the  plaintiff  to  be  transj)orted  from 

the in to ,  Virginia,  and  the 

said  defendant  issued  a  bill  of  lading  to  the  said    

for  the  said  horses,  in  which  bill  of  lading  the  consignee  was 

given  as destination ,  Virginia,  which  bill 

of  lading  was  transmitted  by   to  the  plaintiff,  who 

was  from  the  date  tliereof  and  now  is  the  lawful  holder  thereof. 

That  the  line  of  the    company  does  not  extend 

to  Virginia,  but  terminates  at  ,  Vir- 
ginia, where  it  connects  with  the  line  of  the  com- 
pany,   and   that    it    was   understood    and    agri'ed    between    the 

company,  and  the company  that  the  last 

named  company  should  receive  the  said  horses  of  the  first  named 

company,  at ,  Virginia,  and  carry  the  same  to  their 

destination  at ,  Virginia,  that  it  was  understood  and 

agreed  between  the  plaintiff"  and  the  said  defendants  that  the 

said  horses  should  be  shipped  over  the   company 

and  the company  from  the in 

to  ,   Virginia. 

And  according  to  said  understanding  the  said  horses  were 

shipped  over   the   line  of   the    company    from   the 

in    ,  to   ,   Virginia,  and  were 

there  delivered  by  the  first  named  company  to  the  

company    and    by    said    last    named    company    carried    from 

Virginia,    to    ,    Virginia,    the   point   of 

destination.* 

Whereby  it  became  the  duty  of  the  defendants  to  transport 

the  said  horses  to  the  plaintiff  at   ,  Virginia,  and  it 

was  the  duty  of  the  defendants  not  to  confine  the  said  horses 
in  its  cars  for  a  longer  period  than  twenty-eight  consecutive 
hours,  without  unloading  the  same  for  rest,  water  and  feeding, 
for  a  period  of  at  least  five  consecutive  hours,  unless  prevented 
from  so  unloading  by  storm  or  other  accidental  causes. 

Nevertheless  in  disregard  of  the  said  duty,  the  said  defend- 
ants confined  the  said  horses  in  their  cars  for  a  longer  period 
than  twenty-eight  consecutive  hours,  without  unloading  the 
same  for  rest,  water  and  feeding,  for  a  period  of  at  least  five 
consecutive  hours,  although  the  defendants  were  not  prevented 
from  so  unloading  by  storm  or  other  accidental  causes. 


CASE  ^^1 


Whereby  and  by  reason  of  the  defendants  negligence,  and  dis- 
regard of  their  said  duty,  all  of  the  said  horses  were  made  sick 
and  two  of  said  horses  died  and  one  or  more  of  the  said  horses 
'ere  made  lame  and  a  considerable  number  of  the  said  horses 
became  so  starved  and  hungry  that  they  chewed  and  ate  the 
tails  of  one  another  and  were  thereby  greatly  injured  and  dam- 
aged, by  reason  of  said  breach  of  duty  and  neghgence  of  both  of 
said  defendants.  ,   ■■  ., 

2.  (Consider  first  count  to  star  as  here  repeated  the  same  as 
if  set  out  in  words  and  figures.)  -,  ^     j     +    ^^ 

Whereby  it  became  and  was  the  duty  of /he  defendants  Jo 
transport  the  said  horses  with  all  reasonable  dispatch  to  the 

^^Bul' Uif  said  defendanl'l'rdessly  and  negligently  failed  to 
tra'n^U  the  .id  horses  with   all   -sonab.^dis^^^^^^^^^^^^^ 

delayed  the  transportation  of  said  ^^orses  on  ^e^  r^ou^^ 

line  of  the'  "  '  ^.  •  ' ' '  company  and  the  company, 

n  consequence  of  which  delay  said  horses  became  sick,  sore 
arne  and  hungry,  so  that  two  of  them  died  as  the  effect  of  said 
breach  of  dutv  knd  negligence  of  the  defendants,  and  many  of 
the  horses  had  their  tails  eaten  off  by  each  other  owing  to  their 
gieat  hunger,  caused  by  said  delay,  and  by  the  said  careless- 
ness and  negligence  of  the  said  defendants. 

3.     (Consider  first  count  to  star  as  here  repeated  the  same 
flsif  set  out  in  words  and  figures.)  ^     f  ^a 

And  the  said  defendants  knew  that  it  was  necessary  to  feed 
thfsaid  horses  at  proper  times  during  the  said  journey  and 
knevv  that  no  agent  of  the  plaintiff,  or  other  person  charged 
w"th  the  duty  of  feeding  said  horses,  accompanied  hem,  ex- 
cept the  agents  and  employees  of  the  defendants,  and  the  said 
defendants  according  to  their  usual  practice  and  custom,  under- 
took to  p^perly  feed  the  said  horses  during  the  said  journey, 
and  it  was  their  dutv  to  so  feed  them.  v       +i 

Nevertheless,  the  'said  defendants  carelessly  and  negligently 
failed  to  properly  feed  the  said  horses  during  the  said  journey 
wh  le  the^said  horses  were  in  their  care  and  custody,  by  reason 
whereof  the  said  horses  became  sick,  sore,  lame  and  hungry,  so 
that  tlof  them  died  as  the  effect  of  said  breach  of  f  ty  and 
negligence  of  the  defendants,  and  many  of  them  had  their  tails 
eaten  off  by  each  other,  owing  to  the  great  hunger,  caused  by 
the  said  breach  of  duty,  carelessness  and  negligence  of  the  said 

^'By'ieason  whereof,  the  said  plaintiff  has  been  greatly  injured 
and  damaged  and  has  suffered  large  losses  owing  to  he  death 
of  two  of  said  horses,  and  owing  to  medicine  and  treatment  for 
?he  horses  which  were  made  sick  as  aforesaid,  and  owing  to  the 
exnense  of  keeping  and  caring  for  the  sick  horses  and  for  those 
whicS  were  in  Led  and  made  unsalable  by  reason  of  having  their 


762  ANNOTATED   FORMS   OF    PLEADlNtJ    AND    PHACTICB 

tails  eaten  by  the  other  horses,  and  owing  to  the  expense  of 
insurance  and  stabling  of  the  said  horses  while  tht-y  were  made 
unsalable  as  aforesaid. 

To  the  damage  of  the  plaintiff  $ And,  therefore, 

he  brings  his  suit. 

1383  Goods  damaged,  Narr.  (111.) 

For  tiuit  wliereas,  before  and  at  the  time  of  the  delivery  of 
the  goods  and  chattels  to  said  defendant,  as  hereinafter  next 
mentioned,  it  was,  and  from  tiience  hitherto  has  been  possessed 
of,  and  using  and  oi)erating  a  certain  railroad,  anil  was  and  still 
is  a  common  carrier  of  goods  and  chattels,  for  hire,  to  wit, 
from to ,  at,  etc. : 

And  whereas,  also,  the  plaintitY,  wiiilst  the  defendant  was  such 

common  carrier  as  aforesaid,  to  wit,  on  the   day  of 

,  19.  .,  at to  wit,  at  etc.,  caused  to  be 

delivered  to  the  defendant,  and  the  defendant  then  and  there 
accepted  and  received  of  and  from  the  plaintiff  divers  goods  and 
chattels,  to  wit;   (Describe  proi)erty)   of  the  said  plaintiff  of 

great  value,  to  wit,  of  the  value  of ($ )  dol- 

hirs,  to  be  safely  and  securely  carried  and  conveyed  by  the 
said  defendant  from aforesaid  to  afore- 
said, and  there,  to  wit,  at,  etc.,  aforesaid,  safely  and  securely 
to  be  delivered  for  the  said  plaintiff  for  certain  reasonable  re- 
ward to  the  said  defendant  in  that  behalf.  Yet  the  said  defend- 
ant, not  regarding  its  duty  as  such  common  carrier  as  afore- 
said, but  contriving  and  fraudulently  intending  craftily  and 
subtly  to  deceive,  defraud  and  injure  said  plaintilT  in  this  be- 
half, did  not,  nor  would  safely  or  securely  carry  or  convey  the 
said  goods  and  chattels,  to  wit,  the  (Describe  property)  from 

aforesaid  to aforesaid,  nor  there,  to  wit, 

at aforesaid,  safely  or  securely  deliver  the  same  for 

the  plaintiff,  but  on  the  contrary  thereof,  the  defendant  so 
being  such  common  carrier  as  aforesaid,  so  carelessly  and  negli- 
gently behaved  and  conducted  itself  in  the  premises,  that  by 
and  through  the  carelessness,  negligence  and  default  of  the  de- 
fendant in  the  premises  the  said  (Describe  property)  aforesaid, 
being  of  the  value  aforesaid,  afterwards,  to  wit,  on  the  day  and 
year  aforesaid,  to  wit,  at,  etc.,  afterAvards  became  and  were 
greatly  injured,  damaged,  and  spoiled,  to  the  great  loss  of  the 
plaintiff*,  to  wit,  at,  etc.,  aforesaid. 

2.  And  whereas,  also,  heretofore,  to  wit,  on  the  day  and  year 
aforesaid,  to  wit,  at.  etc.,  aforesaid,  the  plaintiff,  at  the  special 
instance  and  request  of  the  defendant,  caused  to  be  delivered 
to  the  defendant  certain  other  goods  and  chattels,  to  wit,  (De- 
scribe property)  of  like  number,  quantity,  quality,  description 
and  value  as  those  in  said  first  count  mentioned  of  the  plain- 
tiff, to  be  taken  care  of,  and  safely  and  securely  carried  and 
conveyed  by  the  said  defendant  to   ,  aforesaid,  and 


CASE  763 

there,  to  wit,  at ,  aforesaid,  to  be  safely  and  securely 

delivered  by  the  defendant  for  the  plaintiff,  within  a  reason- 
able time  the  next  following  for  certain  hire  and  reward  to  the 
defendant  in  that  behalf ;  and  although  the  defendant  then  and 
there  accepted,  and  had  and  received  the  said  last  mentioned 
(Describe  property)  aforesaid,  for  the  purpose  and  the  terms 
aforesaid;  yet  the  defendant  not  regarding  its  duty  in  that 
behalf,  but  contriving  and  fraudulently  intending,  craftily  and 
subtly  to  deceive  and  defraud  the  plaintiff  in  this  respect,  did 
not  nor  would,  within  such  reasonable  time  as  aforesaid,  take 
care  of,  or  safely  or  securely  carry  and  convey  the  said  last 

mentioned  (Describe  property)  to aforesaid ;  and 

bv  means  of  the  negligence  and  improper  conduct  of  the  de- 
fendant in  that  behalf  the  said  last  mentioned  (Describe  prop- 
erty) were  long  and  unreasonably  delayed  in  their  delivery  to 
the  plaintiff,  and  were  furthermore  greatly  damaged,  injured 
and  spoiled  to  the  great  loss  of  the  plaintiff,  to  wit,  at,  etc., 

aforesaid.    To  the  damage  of  the  said  plaintiff  of 

dollars,  and  therefore  he  brings  his  suit,  etc. 

1384  Goods  lost  in  transit,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of , 

19..,  the  plaintiff  was  a  corporation  engaged  in  business  of 
manufacturing  and  selling and  owning  and  operat- 
ing a   factory  in  the  township  of   , 

.  ° county,   Illinois,  and  the  defendant  was  then  and 

there  a  railway  corporation  operating  a  line  of  railway  in  the 
state  of  Illinois,  and  extending  into  and  through  said  town- 
ship of  and  was  then  and  there  a  common  carrier 

of  goods  and  chattels  fo"  hire ;  that  said  plaintiff",  on,  to  wit,  the 

day  of ,  19.  .,  at  its  said  factory,  caused 

to  be  delivered  to  the  said  defendant,  and  the  said  defendant  then 
and  there  accepted  and  received  of  and  from  the  said  plaintiff, 
certain  goods  and  chattels,  to  wit:  (Insert  description  of  goods 

and   chattels)    of   the   value   of  dollars,    the    said 

being  then  and  there  in  good  condition  to  be  safely 

and  securely  transported  by  said  defendant  from  the  factory 

of  said  plaintiff  aforesaid  to county,  in  the  state  of 

and  there  safely  and  securely  to  be  delivered  for 

said  plaintiff  to   on  a  certain  side  track  or  siding 

commonly  known  as  " "in  said county,  in 

the  said  state  of for  certain  reasonable  reward  to  said 

defendant  in  that  behalf;  yet  the  defendant  not  regarding  its  duty 
as  such  common  carrier  as  aforesaid,  did  not  safely  or  securely 
transport  the  said  ,  from  the  factory  of  the  plain- 
tiff aforesaid,  to county  aforesaid,  nor  there  safely 

or  securely  deliver  the  same  for  said  plaintiff  to  said 

on    said    siding    in    said   county,    in    the    state    of 

,  nor  to  any  other  person  nor  at  any  other  place 


764  ANNOTATED    FORMS   OK    I'LE-VDING    AND    PRACTICE 

for  said  plaintiff,  hut  on  the  crtntrar}'  thtTfof  said  tlofondant 
so  cart'lcssly  and  nrj^lit^'t-ntly  Ix-lia vcd  and  t-onducti'd  itself  that 
by  and  through  its  candessness,  ni-vjiigenee  and  ticfault,  the  said 

heing  of  the  vahn-  aforesaid,  afterwaids,  to  wit,  on 

the  day  and  year  aforesaid,  heeaiue  and  were  and  are  wliolly 
lost  to  the  said  plaiutilf,  to  the  damage,  ete. 

2.  And  whereas,  also,  heretofore,  to  wit,  on  the  day  and  year 

aforesaid,  at   county  aforesaid,  the  plaintilf  at  the 

request  of  the  defendant,  caused   to  be  delivered   to  the  wiid 

defendant  certain  other  goods  and  chattels,  to  wit, 

of  a  like  nuniher,  <|uantity,  (|uality,  description  and  value  as 
those  in  the  said  first  count  mentioned  of  the  said  plaintitT,  to 
be  taken  care  of  and  safely  and  securely  carried  and  conveyed 

by  the  said  defendant  to county  aforesaid,  and  there, 

to  wit,  at county  aforesaiil,  to  be  safely  and  securely 

delivered  by  the  defendant  for  the  plaint itV  within  a  reason- 
able time  then  next  following,  for  a  certain  hire  and  reward  to 
the  defendant  in  that  l)ehalf;  and  although  the  sjiid  defendant 
then  and  there  accepted,  and  had  and  received  said  last  men- 
tioned   ,  for  the  purpose  and  on  tiie  terms  aforesaid. 

and  although  a  reasonable  time  for  the  carriage,  conveyance  and 
delivery  thereof  as  aforesaid,  has  long  since  elapsed;  yet  the 
said  defendant,  not  regarding  its  duty  in  that  behalf  did  not 
nor  would  within  such  reasonable  time  as  aforesaid,  or  at  any 
time  afterwards  take  care  of  ur  safely  or  securely  carry  anil 

convey  the  said  last  mentioned to county 

aforesaid,  nor  there,  to  wit,  at county  aforesaid, 

safely  or  securely  deliver  the  same  for  the  said  plaintiff ;  but 
hitherto  has  wholly  neglected  and  refused  so  to  do,  and  by 
means  of  the  negligence  and  improj)er  conduct  of  the  said  de- 
fendant in  that  behalf,  the  said  last  mentioned have 

not  been  delivered  to,  nor  for,  the  said  i)laintifT  at  

county  aforesaid,  or  elsewhere,  and  are  wholly  lost  to  the  said 
plaintili'. 

3.  And  whereas,  also,  afterwards,  to  wit,  on  the  day  and 

year  aforesaid,   at   the    county  aforesaid,   the  said 

defendant  at  its  special  instance,  and  re(iuest,  had  the  care  and 
custody  of  certain  other  goods  and  chattels,  to  wit,  of  a  like 
number,  quantity,  (juality,  description  and  value  as  those  in 
the  said  first  count  mentioned  of  the  said  plaintiff;  yet  the 
said  defendant,  not  regarding  its  duty  in  that  behalf,  did  not, 
nor  would  it,  while  it  had  the  care  and  custody  of  the  afore- 
mentioned,    as  aforesaid,  take  due  and  proper  care, 

of  the  same  but  wholly  neglected  so  to  do  and  took  such  bad 
care  thereof  that  afterwards,  to  wit,  on  the  day  and  year  afore- 
said, the  aforementioned  became  and  were  and  are 

wholly  lost  to  the  plaintiff.    To  the  damage,  etc. 


CASE  765 

1385  Vicious  animals,  action 

An  action  on  the  case,  and  not  that  of  trespass,  is  maintain- 
able for  an  injury  done  by  a  vicious  animal,  where  the  owner 
of  the  animal  has  notice  of  its  vicious  propensity.  ^^^ 

1386  Vicious  animals,  declaration  requisites 

In  an  action  for  an  injury  by  a  vicious  animal  the  declara- 
tion must  aver  a  scienter.^^^ 

1387  Vicious  animals,  Narr.  (Mich.) 

For  that  whereas,  the  said  defendant  heretofore,  to  wit,  on 

the   day  of 19. .,  and  for  a  long  space 

of  time  theretofore,  at  the  township  of in  the  county 

of and  state  of  Michigan,  was  the  owner  and  keeper 

of  a  certain  large  dog,  and  ponnittcd  and  allowed  said  dog  at 
all  times  to  go  at  large,  and  did  not  keep  said  dog  tied  up  or 
otherwise  restrained  as  was  said  defendant's  duty.  That  said 
dog  then  and  there,  and  for  a  long  space  of  time  theretofore, 
was  vicious  and  was  used  and  accustomed  to  attack  and  bite 
mankind,  and  .said  defendant  then  and  there,  and  for  a  long 
space  of  time  theretofore  well  knew  the  hal)its  of  said  dog  and 
that  it  wa.s  vicious  and  u.sed  and  accustomed  to  attack  and  bite 
mankind.  That  thereupon  and  by  rea.son  thereof  it  became  and 
was  the  duty  of  said  defendant  at  all  times  to  keep  said  dog 
tied  or  otherwise  restrained  and  not  to  permit  it  to  go  at  large. 
lUit,  notwitlistiinding  the  said  knowledge  of  the  habits  and 
viciousness  of  said  dog,  and  said  defendant's  duty  to  restrain 
it  from  going  at  large,  still  he  permitted  and  allowed  said  dog  to 
go  at  large  and  unrestrained  at  all  times,  and  particularly  upon 
the  date  next  hereinafter  mentioned. 

Plaintiff   further  alleges  that  on  said    day  of 

aforesaid,  in  the  day  time  of  said  day  she  was  walk- 
ing towards  and  approaching  the  dwelling  house  of  the  said 
defendant  in  .said  township, county  and  state  afore- 
said and  while  on  the  steps  leading  to  the  porch,  the  said  dog 
aforesaid,  so  owned  and  kept  by  the  said  defendant  as  aforesaid 
and  when  said  dog  was  at  large  and  not  tied  or  otiierwise  re- 
strained and  without  fault  or  negligence  of  said  plaintiff,  vici- 
ously attacked  and  did  then  and  there  assault  and  bite  said 
plaintiff  on  both  of  her  ankles,  feet  and  legs  below  the  knees, 
and  did  then  and  there  terribly  lacerate,  hurt,  wound  and  injure 
the  said  plaintiff.  And  thereupon  and  thereby  she,  the  said 
plaintiff",  on  the  portions  of  her  anatomy  aforesaid  was  greatly 
bruised,  torn  and  lacerated;  and  that  said  plaintiff  thereupon 

135  stumps  V.  Kelley,  22  111.  140,  i36  Stumps  v.  Kelley,  supra, 

143    (1859). 


766  ANNOTATED   FORMS  OF   PLEADING   AND    PRACTICE 

and  by  reason  thereof  then  and  there  became  and  was  sick,  sore, 
lame  and  disordered,  and  so  remained  and  continued  for  a  long 
space  of  time,  to  wit,  from  thence  hitherto  and  will  so  remain 
and  continue  for  a  great  length  of  time  hereafter;  and  plaintiff 
alleges  that  her  said  injuries  are  permanent  and  may  ultimately 
prove  fatal,  and  that  she  will  never  recover  therefrom,  and  that 
it  may  become  necessary  to  amputate  one  or  both  of  her  legs 
because  of  said  injury. 

Plaintiff  alleges  that  at  the  time  and  place  aforesaid  her  right 

leg  was  bitten  by  said  dog,  to  wit, inches  above  the 

lower  edge  of  the  outside  ankle  almost  entirely  around  her  leg. 
That  the  skin,  muscles  and  tissues  were  bitten,  torn  and  lace- 
rated to  a  great  depth,  to  ^\^t, inch.     That  the  flesh 

and  tissues  became  and  were  and  still  are  greatly  inflamed, 
swollen  and  ulcerated  containing  great  ([uantities  of  pus.  That 
her  said  leg  below  the  knee  became  and  continued  for  a  great 
length  of  time  to  be  black  and  blue,  and  discolored  both  exter- 
nally and  internally  extending  down  and  along  the  middle  of 

her  right  foot  for  a  considerable  distance,  to  wit,  for 

inches.     That  her  left  leg  between  the  knee  and  the  foot  and 

particularly  at  points  respectively,   to  wit,    inches 

being  the  lower  edge  of  the  external  ankle  and  above  the  poste- 
rior part  of  the  external  ankle,  was  bitten  by  said  dog  around 
the  entire  leg  and  that  by  reason  thereof  and  the  injuries  afore- 
said said  leg  then  and  there  became  and  was  and  still  is  sore, 
red,  inflamed  and  swollen ;  that  the  skin,  muscles  and  tissues 
of  said  leg  were  bitten,  torn  and  lacerated  to  a  great  depth,  to 

wit,   inches,  that  the  flesh  and  tissues  became  and 

were  and  still  are  greatly  inflamed,  swollen  and  ulcerated,  con- 
taining great  quantities  of  pus.  That  said  leg  below  the  knee 
became  and  continued  for  a  great  length  of  time  to  be  black 
and  blue  and  discolored,  both  externally  and  internally  and 
extending  down  and  along  the  middle  of  her  left  foot  for  a  con- 
siderable distance,  to  wit,  inches. 

That  by  reason  of  said  injuries  afores&id  said  plaintiff  suf- 
fered and  still  suffers,  and  will  continue  to  suffer  for  an  inde- 
finite length  of  time  hereafter  great  bodily  pain  and  mental 
pain,  anguish  and  humiliation;  that  she  is  severely  and  per- 
manently wounded  and  injured  and  disfigured  for  life;  that 
plaintiff's  whole  nervous  system  was  and  is  greatly  and  per- 
manently injured  by  the  shock,  fright  and  injuries  aforesaid 
from  and  by  said  assault  and  injury  of  said  dog.  That  she  has 
no  appetite,  cannot  sleep  and  is  otherwise  severely  and  per- 
manently injured.  That  plaintiff  before  said  injury  was  a 
sound  and  healthy  person,  both  in  mind  and  body ;  that  her 
mental  faculties  and  physical  health  have  been  and  now  are 
permanently  injured  and  shattered,  and  her  blood  poisoned  and 
contaminated  by  reason  of  said  injuries  as  aforesaid.  That  she 
has  expended  large  sums  of  money  for  medicine  and  attendance 
of  physicians ;  that  she  has  lost  a  great  deal  of  time  and  is  unable 


CASE  767 

to  work  and  perform  her  usual  duties,  labor  and  occupation. 
Plaintiff  further  alleges  that  she  Avas  absolutely  without  fault 
or  negligence  in  the  premises  and  that  she  did  not  contribute 
in  any  manner  to  said  injury. 

The  plaintiff  therefore  alleges  that  she  is  entitled  to  damages 
by  reason  of  the  premises  and  under  and  by  virtue  of  the  statute 
in  such  cases  made  and  provided  the  same  being  section  5593  of 
Miller's  Compiled  Laws  of  1897  for  the  state  of  Michigan.  To 
the  damage,  etc. 

1388  Water  supply,  cut  off,  Narr.  (Miss.) 

That  said is  a  corporation  organized  and  existing 

under  and  by  virtue  of  the  laws  of  the  state  of  Mississippi,  and 

domiciled  in  the  city  of in  said  state ;  that  on  the 

day   of    ,    19..,   pursuant   to   law   and 

proper  authority  granted  by  the  municipal  authorities  of  the 
of a  contract  was  entered  into  and  be- 
tween said  and  the   for  the  purpose  of 

furnishing   water   for   domestic   purposes,   and    for   protection 

against  fire  in  said   ,   and  that  on  the    

day  of ,  19.  .,  a  supplemental  contract  was  entered 

into  in  that  behalf;  all  of  which  appears  by  reference  to  a  copy 
of  said  contract  and  supplemental  contract  filed  as  a  part  hereof 
marked  exhibit  "A." 

That  under  said  contracts  the  said   constructed 

certain  mains  and  fire  hydrants  in  the of 

state  aforesaid,  which  were  located  by  the  municipal  authorities 
of  the ;  all  of  which  appears  by  reference  to  a  resolu- 
tion of  order  accompanying  said  contracts. 

That  under  the  said  contracts,  the  said contracted 

and  agreed  to  furnish  said and  inhabitants  thereof, 

where  such  pipes  and  mains  were  laid,  first  class  fire  protection 
and  an  adequate  supply  of  water  for  the  greatest  protection 
against  fire ;  all  of  which  appears  by  reference  to  the  provisions 
of  the  contracts  themselves. 

That    plaintiff    is    a    citizen    of   and    owns    the 

(Describe  property)  in  said upon  which 

is  situated  a  valuable  frame  residence  owned  and  occupied  by 

him    ;  he  was  also  seized  and  possessed  of  a  large 

amount  of  personal  property  situated  and  contained  in  said 
building  consisting  of  household  and  kitchen  furniture,  wear- 
ing apparel  and  other  effects;  that  in  pursuance  of  law  and 
the  contracts  aforesaid,  under  which  the  said  ..........  ac- 
quired its  franchise  for  the  year plaintiff  as  the 

owner  of  said  property  entered  into  a  contract  with  said  com- 
pany to  supply  his  residence  with  water  for  domestic  purposes; 
that  the  water  for  these  purposes  was  conducted  by  the  pipes 
connected  with  the  mains  of  said  company  through  said  resi- 
dence and  was  distributed  throughout  the  residence  for  use  in 


768  ANNOTATED   FORMS  OP   PLEADING   AND   PR-VCTICE 

the  bath  rooms  and  in  other  places  thereof;  that  for  this  privi- 
lege and  under  these  contracts,  plaint ilT  paid  to  the  said  com- 
pany for  the  use  of  the  water  thus  to  he  supplied  on  said  prem- 
ises the  sum  of dollars  per  (luarter.  payable  in  ad- 
vance, the  last  quarter  ending ;  and  that  under  these 

contracts  it  was  the  duty  of  said  company  to  supply  to  the 
plaintitf  on  said  premises,  at  all  times  during  said  continuation 
of  said  contracts  the  water  contemplated  by  thfiu. 

That  in  a  bath  room  on  the  second  story  in  the  said  residence 
was  installed  an  apparatus  for  heating  water  by  burning  gas, 
conunonly  called  an  instantaneous  heater  which  was  connected 
with  the  said  water  pipes  leading  into  said  residence  and  with 
gas  pipes  leading  into  s^nd  residence;  that  said  heater  was  so 
constructed  that  it  could  not  be  used  to  burn  gas  without  a 
sufticient  tlow  of  water  through  the  pipes  connected  therewith ; 
that  heaters  of  this  character  were  and  are  in  common  use  in 

the   of   and  are  all  connected  with  the 

water  pipes  of  said    ;   that  especially  was  this  the 

case  as  to  the  block  or  square  upon  which  the  residence  of  the 
plaintitf   was   situated    and    the    adjacent    blo<'ks    and   S(iuares 

thereto ;  that  all  of  this  was  well  known  to  the  said and 

the  officers,  agents  and  employees  thereof;  and  that  it  was  also 
well  known  to  them  that  the  use  of  such  a  heater  without  a  suffi- 
cient flow  of  water  was  dangerous,  and  that  it  would  necessarily 
result  in  a  conflagration. 

That  on day  of ,  1^  •  • ,  about 

o'clock   noon,  plaintiff's  house  being  thus  connected 

with  the  system  of  water  works  of  said  and  the  gas 

heater  being  properly  installed  therein,  plaintiff  turned  and 
ignited  the  gas  in  siiid  heater  for  the  purpose  of  obtaining 
warm  water  in  the  bath  tub;  that  at  that  time  the  water  was 
freely  flowing  through  the  pipes  and  that  there  was  a  sufficient 
supply  thereof;  that  after  turning  on  and  igniting  the  gas  for 
thus  obtaining  warm  water,  a  period  of  five  to  ten  minutes  is 
required  for  an  ordinary  sufficient  supply;  that  after  this  turn- 
ing on  the  water,  the  plaintiff  left  the  bath  room  for  a  ver\' 
short  space  of  time  intending  to  return  and  shut  off  the  gas 
and  flow  of  water  when  a  sufficient  supply  of  water  had  been 
obtained;  that  almost  immediately  after  plaintiff  had  thus  turned 

on  the  water  and  ignited  the  gas  in  said  heater  the  said , 

through  the  defendant  its  superintendent,  wrong- 
fully, unlawfully  and  without  notice  to  plaintiff,  or  any  one  on 
the  premises,  and  without  giving  any  warning  whatever,  closed 
a  valve  near  the  plaintiff's  residence  and  thereby  cut  off  the 
supply  of  water,  and  instantly  the  water  ceased  to  flow  through 
the  pipes  connected  with  said  heater,  and  the  necessar\'  and 
immediate  result  was  a  conflagration  caused  by  the  burning  of 
the  gas  without  any  water  supply  in  the  heater,  and  this  con- 
flagration caused  plaintiff's  residence  to  take  fire. 

That  the   plaintiff'  promptly   discovered  the  absence  of  the 


CASE 


769 


flow  of  water  and  the  conflagration  and  endeavored  to  extin- 
guish the  fire,  and  although,  he  made  every  effort  to  obtain 
water  from  faucets  in  the  house,  he  was  unable  to  obtain  any 
water,  because  none  was  flowing  through  the  pipes,  and  for  this 
reason  he  was  unable  to  extinguish  the  fire,  and  the  same  rapidly 
spread  and  destroyed  a  large  part  of  the  building  and  greatly 
damaged  the  entire  building  and  it  also  destroyed  and  damaged 
a  large  amount  of  valuable  personal  property  owned  by  plaintiff 
and  situated  in  said  building,  and  in  addition  to  this  plaintiff 
was  injured  and  burned  in  his  efforts  to  extinguish  the  fire. 

That  it  was  the  duty  of  said ,  a  public  service  cor- 
poration, to  supply  his  premises  with  a  constant  flow  of  water 
through  the  said  pipes  provided  therefor;  that  it  was  wrong- 
ful and  unlawful  and  in  violation  of  law,  and  also  in  viola- 
tion of  the  rules  and  regulations  concerning  the  duty  of  said 
defendant  to  cut  off  said  supply  of  water  without  warning 
or  notice;  that  there  was  no  emergency  for  thus  cutting  off 

the  water,  and  the  act  of  said  defendant  and  the  said 

was  not  only  a  \-iolation  of  law  and  the  rules  applicable  to  the 
duty  of  defendant  company  and  the  custom  in  such  cases,  but 
that  it  was  contrary  to  the  most  ob\ious  rules  of  ordinary  pru- 
dence ;  and  that  they  well  knew  how  the  residence  was  occupied 
and  used  and  had  ample  opportunity  to  give  notice  if  the  cut- 
ting off  of  the  water  at  that  time  was  necessar>-. 

That  if  plaintiff  had  received  any  previous  warning  or  notice 
he  would  not  have  turned  on  the  water  and  ignited  the  gas  in 
said  heater ;  that  after  having  done  so,  if  he  had  been  warned  or 
notified  in  any  way  that  the  water  supply  would  be  or  was  being 

cut  off  by  the  defendants he  could  and  would  have 

promptly  shut  off  the  gas,  and  that  thus  the  fire  and  conse- 
quent loss  would  have  been  prevented;  that  the  plaintiff  there- 
fore avers  that  such  a  fire  was  caused  solely  by  the  wrongful, 
unlawful  and  grossly  negligent  conduct  of  the  defendants  and 
without  any  fault  or  neglect  on  his  part. 

By  reason  of  said  fire  a  large  part  of  said  building  was  de- 
stroyed and  the  remainder  of  the  building  was  greatly  dam- 
aged, the  total  amount  of  damages  to  said  residence  being  the 

sura  of dollars ;  that  also  by  reason  of  said  fire  the 

extent  of  plaintiff's  loss  as  to  his  personal  property  damaged 
was  and  is  the  sum  of dollars ;  that  also  the  plain- 
tiff then  and  there  sustained  by  reason  of  inconvenience  and 
loss  of  the  use  of  the  said  building  and  of  the  use  of  his  furni- 
ture,   fixtures,    and    other    personal    property    therein    to    the 

amount  of dollars :  and  that  plaintiff  also  suffered 

great  mental  and  physical  pain,  inconvenience  and  discomfort 

and  sustained  damages  therefrom  in  the  sum  of 

dollars.  All  of  which  loss  and  damages  were  sustained  by  plain- 
tiff in  consequence  of  the  carelessness,  gross  negligence  and  wil- 
ful misconduct  of  the  defendant  aforesaid. 


770  ANNOTATED   FORMS   OF    PLEADING    AND   PRACTICE 

1389  Wrongful  discharge  effected  by  employer's  liability  in- 
surer, Narr.  (111.) 

For  that  whereas,  on  or  about  the day  of , 

,  said  plaintiff  was  in  the  employ  of  a  corporation  or  company 

knovvn  as  the  U  company ;  that  on  or  about  the  said  date  said 
plaintiff,  while  in  the  employ  of  said  U  company,  received  a 
serious  and  permanent  injury  to  one  of  his  eyes,  then  and  there 
losing  the  sight  of  the  same ;  that  aftenvards,  to  wit,  on  or  al)Out 

the day  of ,  VJ.  .,  said  i)laintiff  l)rou^rht 

an  action  in  the court  of county,  in  the 

state  of  Illinois,  against  said  U  company,  for  and  on  account 
of  said  injury,  which  action  is  still  pending  therein,  claiming'  in 
said  suit  that  the  said  injury  so  received  by  the  plaintiff  was 
caused  through  the  negligence  of  said  U  company;  that  after 
said  suit  against  said  U  company  had  been  commenced  by  plain- 
tiff as  aforesaid,  he,  the  said  plaintiff,  remained  in  the  employ 

of  said  U  company  until,  to  wit.  the day  of ., 

19..,  when  he  w'as  discharged  from  said  employment  by  said 
U  company,  as  hereinafter  set  forth. 

Plaintiff    further    avers    that    the    defendant,    on    or    about 

,  19.  .,  through  its  servants,  agents  and  employees, 

maliciously,  wrongfully  and  without  any  reason  or  lawful  cause, 
and  for  the  purpose  of  injuring  the  plaintiff,  demanded  as  of 
and  from  tiic  said  V  company  that  tiiey  immediately  discharge 
the  plaintiff  from  such  employment,  as  such  servant,  and  thereby 
then  and  there  maliciously,  wrongfully  and  for  the  purpose  of 
injuring  plaintiff  procured  his  discharge  from  such  employ- 
ment. 

Plaintiff  further  avers  that  said  U  company  at  the  time  of  such 
discharge  was  well  satisfied  with  the  services  of  plaintiff,  and 
had  no  intention,  cause  or  reason  to  discharge  the  plaintiff',  and 
would  not  have  discharged  him  from  such  employment  were 
they  not  compelled  to  do  so  by  said  defendant ;  that  said  de- 
fendant at  the  time  was  defending  said  U  company  in  the  suit 
against  it  by  said  plaintiff,  and  that  said  defendant  at  that  time 
then  and  there  informed  said  U  company  that  the  said  plaintiff 
must  be  discharged  at  once  from  his  said  employment;  that  the 
said  defendant  did  not  want  the  said  U  company  to  give  em- 
ployment to  the  plaintiff',  and  thereby  enable  him  to  earn  money 
to  carry  on  his  suit  against  the  said  U  company,  said  suit  being 
defended  by  said  defendant  under  its  contract  with  the  said  U 
company. 

Plaintiff  further  avers  that  he  requested  said  defendant  to 
revoke  its  order  to  the  U  company  to  discharge  the  plaintiff, 
and  that  the  said  defendant  refused  to  comply  with  said  de- 
mand and  request,  unless  the  plaintiff  would  dismiss  his  suit 
against  said  U  company,  and  further  threatened  the  plaintiff 
that  unless  said  suit  was  discontinued  that  he  would  not  be 
permitted  to  work  for  said  U  company  for  a  period  of  ten  years. 


CASE  771 

Plaintiff  further  avers,  that  by  reason  of  such  discharge  as 
above  set  forth,  and  without  any  fault  on  his  part,  he  was  un- 
able to  secure  employment  until,  to  wit,  the    day 

of ,  19.  .  ;  that  at  the  time  of  his  discharge  as  afore- 
said he  was  receiving  wages  at  the  rate  of,  to  wit,  $ 

per  day;  and  that  by  reason,  and  on  account  of  said  discharge 
as  aforesaid,  plaintiff  has  suffered  great  damages  to  his  char- 
acter and  reputation.    Wherefore,  etc. 

SPECIAL  DEFENSES  AND  PLEAS 

1390  Accord  and  satisfaction,  pleading 

At  common  law,  on  account  of  the  equitable  nature  of  the 
action  on  the  case,  accord  and  satisfaction  is  provable  under 
the  general  issue  in  case,  but  not  in  trespass.^ ^" 

1391  Accord  and  satisfaction,  plea 

That  before  the  commencement  of  this  suit,  to  wit,  on,  etc., 

at  the  city  of ,  to  wit,  at  the  county  of  

aforesaid,  he,  the  said  defendant,  paid  to  the  said  plaintiff  the 

sum   of    dollars   of   lawful    money   of   the    United 

States  of  America,  for  and  in  full  satisfaction  and  discharge 
of  the  said  grievances  in  the  said  declaration  mentioned,  and 

which  said  sum  of dollars  he,  the  said  plaintiff,  then 

and  there  accepted  and  received  of  and  from  him,  the  said  de- 
fendant, in  full  satisfaction  and  discharge  of  the  said  griev- 
ances ;  and  this  the  said  defendant  is  ready  to  verify.  Where- 
fore, etc. 

1392  Arrest  without  warrant,  public  oflficer 

An  arrest  ^^^thout  a  warrant  is  legal  if  it  is  authorized  by 
statute  and  it  is  necessary  to  the  proper  enforcement  of  the 
statute.^2^  An  individual,  such  as  a  conductor,  who  is  given  tem- 
porary power  of  arrest  during  a  limited  period  and  under  cer- 
tain circumstances  is  not  a  public  officer  under  the  constitu- 
tion.130 

1393  Conspiracy  between  contractor  and  improvement  board 
In  an  action  for  conspiracy  between  a  contractor  and  an  im- 
provement board  it  is  no  defense  that  the  plaintiff  could  have 

137  Wallner  v.  Chicago  Consoli-  "^  Tarantina  v.  Louisville  4 
dated  Traction  Co.,  245  111.  148,  151  Nashville  R.  Co.,  supra;  Seca.  24, 
(1910).                                                        25,  art.  5,  Constitution. 

138  Tarantina  v.  Louisville  & 
Nashville  R.  Co.,  254  111.  624,  631 
(1912);  Laws  l9ll,  p.  462, 


772  ANNOTATED   FOKMS  OF   PLEADING   AND   PRACTICE 

prevented  the  damages  caused  by  the  conspiracy,  by  injunc- 
tion, mandamus  or  objections  to  the  application  for  judgment 
and  order  of  sale.^*** 

1394  Foreign  laws  and  decisions,  pleading 

In  an  action  on  the  case  brought  to  recover  for  an  injurj' 
sustained  in  another  state,  the  defendant  may  prove,  under 
the  general  issue,  that  he  is  not  liable  under  the  law  and  the 
decisions  of  that  state,  although,  as  a  general  rule,  a  foreign 
law  must  be  specially  pleaded.^** 

1395  Fraud  and  deceit ;  inquiry,  failure  to  make 

It  is  no  defense  to  an  action  for  deceit  that  the  plaintiff  con- 
fided in  the  false  representations  instead  of  making  <liligent 
inquiry,  unless  he  has  failed  to  exercise  ordinary  care  and  cir- 
cumspection under  the  particular  circumstances. ^*2 

1396  Fraud  and  deceit ;  statute  of  frauds,  general  issue 

In  an  action  on  the  case  for  fraud  and  deceit  the  defense 
that  the  transaction  constituting  the  cause  of  action  is  within 
the  statute  of  frauds  may  be  raised  under  the  general  issue. ^^^ 

1397  Intoxication,  death  unforeseen 

In  an  action  for  unlawful  intoxication,  it  is  no  defense  to  the 
action  that  the  death  of  the  intoxicated  person  could  not  have 
been  foreseen  by  the  defendant. ^^* 

1398  Intoxication,  life  insurance 

The  collection  of  insurance  money  on  the  life  of  a  husband 
who  has  been  killed  as  a  result  of  the  unlawful  sale  of  intoxi- 
cants, is  no  defense  to  an  action  for  damages  on  account  of  such 
sale  and  killing.^*^ 


1*0  Gage    V.     Springer,    211     El.  i«3  Tliircl  National  Bank  v.  Steel, 

200,   208    (1904).  129  Mich.  434,  438  (1902). 

141  Christiansen    v.    Graver    Tank  i**  Eddy  v.   Courtright,   91    Mich. 
Works,  223  111.  142,  151   (1906).  264,  268    (1892). 

142  Weatherford    v,    Fishback,    3  i^s  Deel  v.  Heiligenstein,  244  111. 
Scam.  170,  174  (1841).  239,  241,  242    (1910). 


CASE  773 

1399  Intoxication;  regulation  and  prohibition,  scope 

Under  its  police  power,  the  state  may  regulate  the  use  and 
sale  of  intoxicating  liquors,  even  to  the  extent  of  entire  pro- 
hibition, and  for  the  purpose  of  reducing  the  evils  of  intem- 
perance, it  may  regulate  the  times,  places  and  circumstances  of 
drinking  intoxicating  liquors.  ^^® 

LIBEL 

1400  demurrer 

(Precede   this  in  Illinois  by  general   demurrer)     And  for 

special  cause  of  demurrer  as  to  the count  of  the  said 

declaration,  defendant  saith  that  the  same  is  not  sufficient  in 
law,  because  the  said  count  of  said  declaration  alleges  that 
the  alleged  libelous  matter  is  contained  in  an  answer  of  defend- 
ant filed  in  a  certain  chancery  proceeding  in  the   

court  of county,  and  that  the  same  is  irrelevant,  im- 
pertinent and  unnecessary  to  the  defense  of  said  cause  and  does 
not  set  out  and  show  to  the  court  the  pleadings  in  said  cause  so 
that  the  court  can  determine  whether  or  not  the  said  alleged 
libelous  matter  is  irrelevant,  impertinent  and  unnecessary  to  the 
defense  of  said  cause;  and  this  the  said  defendant  is  ready  to 
verify ;  wherefore,  etc. 

1401  Denial  or  justification,  proof 

In  actions  for  libel  a  defendant  may  deny  the  publishing  of 
the  words  set  out  in  the  declaration  or  he  may  rely  upon  the 
truth  of  the  words  published.* ^"^  Failure  to  prove  a  plea  or 
notice  of  justification  in  an  action  for  libel  is  of  itself  no  evi- 
dence of  malice  or  an  aggravation  for  damages.^^^ 

1402  General  issue,  scope 

Under  a  denial  or  general  issue  in  an  action  for  libel  the  de- 
fendant may  mitigate  damages  either  by  showing  the  general 
bad  character  of  the  plaintiff  or  by  proving  any  facts  which 
tend  to  disprove  malice.  A  defendant  under  such  an  issue,  has 
no  right  to  prove  specific  acts  or  misconduct  on  the  part  of  the 
plaintiff,  but  is  confined  to  proof  of  his  general  bad  character.^*® 

i«8  Tarantina      v.      Louisville      &  v.     Beecher,     79     Mich.     443,     448 

Nashville  R.  Co.  254  111.  630;  Laws  (1890);  Sec.  3,  c.  126,  Kurd's  Stat. 

1911,  p.  462.  1909. 

i«T  Dowie  V.  Priddle,  216  111.  553,  i"  Dowie  v.  Priddle,  216  111.  555, 

555    (1905).  557. 

"8  (10415),  C.  L.  1897;  Wheaton 


774  ANNOTATED    FORMS    OF    l'LKAl)IN<i    AM)    I'RACTICE 

In  an  action  based  upon  the  falsity  of  a  privileged  communi- 
cation, the  defendant  may  show,  under  the  general  issue,  the 
truth  of  such  a  communication.  But  when  the  action  is  for  a 
libel  which  is  not  privileged,  the  justification  of  tiie  libel  is 
strictly  in  avoidance  and  must  be  pleaded  or  noticed  specially. 
This  is  so  because  in  the  one  case,  the  plaintiff  is  bound  to 
prove,  as  a  part  of  his  cause  of  action,  the  falsity  of  the  privi- 
leged communication,  whereas  in  the  other  case,  the  falsity  of 
the  libel  is  not  an  issue  unless  the  defendant  puts  it  in  issue 
by  pleading. '^'^ 

1403  Justification;  plea,  requisites 

A  plea  of  justilicatiou  in  Illinois  retjuires  great  certainty  and 
particularity  of  averment.  The  justification  must  be  of  the 
very  charge  it  is  attempted  to  justify.  When  a  charge  is  spe- 
cific the  plea  need  only  allege  that  the  charge  is  true ;  but  where 
a  charge  is  general,  the  plea  must  state  the  facts  whieh  sliow 
the  charge  to  be  true.  It  is  not  permissible  to  set  up  a  charge 
of  the  same  general  nature,  but  distinct  as  to  the  particular 
subject.  The  plea  must  justify  the  very  words  contained  in  the 
declaration,  or  at  least  those  that  are  actionable.*^* 

1404  Justification;  notice,  requisites 

A  general  notice  of  justification  is  good  under  modern  Michi- 
gan practice;  and  by  such  a  notice  the  defendant  assumes  to 
prove  the  truth  of  the  libelist's  statements  precisely  as  charged. 
If  a  plaintiff  is  dissatisfied  with  a  sweeping  notice,  the  defend- 
ant may  be  compelled  to  serve  particulars  of  his  justification.*^^ 

MALICIOUS  PROSECUTION 

1405  Attachment,  waiver 

The  appearance  of  a  defendant  in  an  attachment  proceeding 
which  has  been  wrongfully  brought  against  him,  and  the  pray- 
ing for  a  change  of  venue  do  not  amount  to  a  waiver  of  the 
trespass.  *^^ 

150  Edwards  v.  Chandler,  14  Mich.  i52  Bailey  v.  Kalamazoo  Publish- 
471,   475    (1866).  ing  Co.,   40  Mich.   251,  254    (1879). 

151  Dowie  V.  Priddle,  216  111.  556,  i53  Thomas  v.  Hinsdale,  78  111. 
557.  259,  261    (1875). 


CASE  775 

1406  False  imprisonment,  res  judicata 

An  order  of  a  circuit  court  holding  to  bail  is  a  complete  de- 
fense to  an  action  for  false  imprisonment  on  a  capias,  in  the  ab- 
sence of  averment  or  proof  of  want  of  malice  or  probable 
cause.  ^^* 

1407  Justification;  res  judicata,  plea,  requisites 

In  an  action  for  false  imprisonment,  a  private  person  can 
only  justify  an  arrest  made  by  him  by  showing  that  a  crime 
has  in  fact  been  committed  and  that  the  person  arrested  is 
guilty  of  the  crime.  Probable  cause  of  guilt  will  not  excuse 
a  private  individual's  making  an  arrest  or  causing  an  arrest 
without  a  warrant.  1^'^  A  plea  justifying  an  arrest  of  the  plain- 
tiff upon  the  ground  that  there  was  probable  cause  for  having 
suspected  the  plaintiff  of  the  commission  of  a  felony  and  for 
having  accused  him  thereof,  must  state  the  specific  reasons  why 
the  plaintiff  was  suspected,  i-^*'  To  a  declaration  counting  solely 
upon  an  arrest  and  imprisonment  without  authority  of  law,  a 
judgment  and  a  process  of  a  court  is  a  complete  defense,  but  not 
so  in  a  case  where  the  charge  is  based  upon  malice  in  issuing 
the  process.^  ^^ 

1408  Justification;  res  judicata,  plea  (111.) 

(Commence  and  conclude  as  in  Sections  887  and  892)     That 

on,  to  wit,  the   day  of was 

then,  and  is  now,  a  justice  of  the  peace  in  and  for  the  said 

county  of    and   state  of  Illinois,  and  that  on  the 

said    day   of    ,   at  the   county   and 

state  aforesaid,  the  said  defendant  made  oath  before  said 

that  the  said  plaintiff  did   on  the    day 

of   ,  19. .,  commit  a  criminal  offense,  to  wit,  that 

the  said  plaintiff  did  feloniously  and  falsely  make,  forge  and 
counterfeit   a   certain   promissory   note,   purporting   to   be   the 

promissory  note  of  said   to  for  the 

payment   of    dollars,  with  intent   to  injure  and 

defraud  the  said  defendant ;  and  the  said  defendant  avers  that 
he,  said  defendant,  had  just  and  reasonable  grounds  to  suspect 
and  believe  that  said  plaintiff  had  committed  the  crime  of  forg- 

154  Johnson  V    Morton,   94   Mich.  ise  White   v.   McQueen,   96   Mich. 

1    6  (189")         '  249,  253   (1893). 

'  155  Enright  V.  Gibson,  219  111.  554  ist  Feld   v.    Loftis,    240    111.    105, 

(1906).  107,  108   (1909). 


776  ANNOTATED   FORMS   OF   PLELVDING   AND   PRACTICE 

ery,  as  above  mentioned;  whereupon  tlie  said   did 

on  said day  of H)  •  . ,  issue  a  warrant  in 

the  name  of  the  people  of  the  state  of  Illinois,  and  din-cted  thf 
same  to  all  sheriffs,  coroners  and  constables  of  said  state  of 
Illinois,  commanding  them,  by  the  authority  of  said  people  of 
the  state  of  Illinois,  to  arrest  the  said  plaintiff,  and  brin^,'  hiiii 

forthwith  before  the  said   or  some  other  justice  of 

the   peace   of  said   county,    to   answer  said   complaint   of  said 
of  the  crime  of  forgery  aforesaiil,  whidi  said  war- 
rant was  then  and  there  delivered  to   ,  the  tli.n  act- 
ing sheriff  of  said county,  and  the  said  sheriff  did, 

on,   to  wit,  the    day   of    19.  .,   execute 

said  writ  by  arresting  the  said  plaintiff,  and  l)ringing  him  be- 
fore said  justice  of  the  peace;  whereupon  said  justice  of  the 

peace,  after  associating  with  him one  of  the  justices 

of  the  peace  of  said  county,  proceeded  to  the  trial  of  said  plain- 
tiff on  said  crimiiuil  charge,  and  the  said  plaintiff  was.  on  said 
Jay  of  19.  .,  before  the  justices  afore- 
said, tried  and*  held  to  bail  in  the  sum  of dollars, 

to  appear  at  the term  19.  .,  of  the   

court  of county and  in  default  ot  giving 

said  bail,  he,  the  plaintiff,  was  then  and  there  committed  to  the 

jail  of  said  county  of ;  and  the  said  defendant  avers 

that  afterwards,   to  wit,   at   the    term, , 

19.  .,  the  grand  jury  of  said  county  of preferred  an 

indictment  against  "the  said  plaintiff,  for  making,  forging  and 
counterfeiting  a  certain  promi.ssory  note,  being  the  same  note  de- 
scribed in  the  oath  before  mentioned  in  this  plea,  and  that  said 

plaintiff    was,    at    the    term    19..,    tried    in    this 

court  for  the  crime  of  forgery,  and  found  guilty  of  tiie 
same,  and  sentenced  to  the  state's  prison  for  the  terra  of 
year.  .,  and  on  motion  tlien  and  tbere  made  by  the 
plaintiff  for  a  new  trial,  which  the  court  then  and  there  re- 
fused; which  are  the  several  supposed  trespasses  in  the  said 
declaration  mentioned.     Wherefore,  etc.^^^ 

1409  Probable  cause,  law  and  fact 

Whether  there  was  probable  cause  for  the  commi.ssion  or  omis- 
sion of  the  act  complained  of,  is  a  question  of  law  when  there 
is  no  dispute  of  the  facts.*^® 

1410  Probable  cause,  pleading:,  proof 

The  existence  of  probable  cause  for  an  arrest  of  the  plaintiff 
on  the  ground  that  he  was  guilty  of  the  commission  of  felony 

IBS  Blalock  V.  Randall,  76  111.  224,  issWliite   v.    McQueen,    96    Mich. 

225,   227    (1875).  249,  254   (1893). 


CASE  ^''^^ 


cannot  be  shown  under  a  plea  of  not  guilty  in  an  action  for 
false  imprisonment,  but  must  be  pleaded  specially,  or  notice  ot 
it  should  be  given  under  the  general  issue,i««  unless  the  declara- 
tion sets  out  fully  the  affidavit,  warrant  and  records  of  the  suit 
which  is  claimed  to  be  malicious;  in  which  case  the  general  issue 
covers  the   defense  of  probable  cause.^«i     a  conviction  by  a 
competent  tribunal  having  jurisdiction  is  prima  facie  evidence 
of  the  existence  of  probable  cause  for  the  prosecution,  although 
subsequently  reversed  by  a  reviewing  court,  and  it  is  a  suffi- 
cient defense  to  a  suit  for  malicious  prosecution  unless  over- 
come by  evidence  that  the  conviction  was  obtained  by   false 
testimony,  fraud,  corrupt  practices  or  unlawful  or  unjustifiable 
means  on  the  part  of  the  one  procuring  the  conviction. i«2 


1411  Ordinance,  pleading 

In  an  action  on  the  case,  an  ordinance  or  statute  may  be 
shown  under  tlic  general  issue.^^^ 

1412  Ownership  of  property,  denial;  plea  (111.) 
(Commence  and  conclude  as  in  Sections  887  and  891)     That 

at  the  time  of  the  committing  of  the  alleged  Sn^'^'-^^^^'l'l.'^^ 

declaration  mentioned,  on,  to  wit,   ...••,  IJ-.,  tne  piam- 

tiff  was  not  then,  nor  theretofore,  nor  before  the  time  of  the 
committing  of  the  alleged  grievances  charged  in  said  declara- 
tioTthe  owner  in  fee  and  lawfully  entitled  to  the  possession  of 
the  land  described  in  said  declaration,  to  wit:  (Insert  descrip- 
tion)  as  charged  in  the  plaintiff's  said  declaration  herein. 

(Maryland)  Plea 

The  defendant  in  the  above  entitled  case  for  a  plea  says: 
That  the  plaintiff  was  not  seized  and  had  no  right  ot  pos- 
session of  the  land  on  which  he  alleges  the  damages  occurred, 
which  are  declared  on  in  this  case. 

«o  WM.e  V.   McQ„ee.,  96   Mich.      ^^-Mc|W  J,  Catho.jc  Pre»  Co., 

:,  e*     J    „«  «    TT^ofa    129  Mich  163  Flvnn  v.  Chicago  City  Ey.  Co., 

181  Steadman  v.  Keets,  i^y  iviicu.  ni    ^Ra    AR-i   nQ^^^ 

669    670   (1902);  Birdsall  v.  Smith,  250  111.  460,  463    (1911). 
158' Mich.  390,  394    (1909). 


778  ANNOTATED   FORMS   OF   PLEADING    AND    PRACTICE 

Replication 

The  plaintiff  for  replication  to  the  defendant's  plea  says 
that  he  is  seized  and  has  a  riglit  of  possession  to  the  land  on 
which  the  alleged  damage  occurred  declared  ou  in  this  case. 

1413  Release,  pleading 

A  release,  a  former  recovery,  a  satisfaction,  or  any  other  mat- 
ter ex  post  facto  which  is  in  discharge  of  the  cause  of  action  is 
provable  under  the  general  issue  in  an  action  on  the  case  with- 
out a  plea  of  puis  darnin  continuance.^'^* 

1414  Seduction,  chastity 

The  defendant's  reputation  for  chastity  and  purity  of  life, 
is  no  defense  to  an  action  for  seduet ion. "''•'*  Prior  unchastity 
is  a  partial  defense  to  an  action  for  seduction,  hut  not  subse- 
quent, i"" 

SL^VNDER 

1415  Generally 

The  defenses  to  an  action  of  slander  are  the  same  as  to  actions 

for  libel.io^ 

1416  General  issue,  proof 

In  an  action  for  slander,  the  defendant  may  show  under  the 
general  issue,  any  facts  and  circumstances  tending  to  prove 
that  he  believed  the  truth  of  the  charge  when  uttered,  for  the 
sole  purpose  of  rebutting  or  disproving  malice  and  mitigating 
damages.  But  where  the  entire  truth  of  the  slanderous  words 
is  sought  to  be  relied  upon  as  a  justification  thereof,  it  must  be 
specially  pleaded  or  noticed. ^"^^ 

1417  Justification;  plea  or  notice,  nature 

A  plea  of  justification  is  a  new  publication  of  the  defamation 
when  it  is  filed  without  an  honest  belief  that  it  can  be  sus- 
tained.^*^^    But  a  plea  or  notice  of  justification  is  not  conclusive 

164  Chicago  V.  Babcock,  143  HI.  "t  Dowie  v.  Priddle,  216  ni.  555. 
358,  364   (1892).  les  Huson   v.    Dale,    19    Mich.    17, 

165  Watson    V.    Watson,   53    Mich.       34  (1869). 

168,   177   (1884).  ic9  Freeman     v.     Tinsley,    50    111. 

laeStoudt  V.   Shepherd,   73   Mich.       497,  499   (1869). 
598. 


CASE  779 

evidence  of  malice  nor  an  aggravation  of  damages,  if  not  proven, 
as  it  was  at  common  law.^^^ 

1418  Justification ;  burden  of  proof,  practice 

Notwithstanding  the  filing  of  a  plea  of  justification  in  an 
action  for  slander,  the  plaintiff  must  first  prove  the  speaking 
of  the  words  alleged,  before  the  defendant  is  bound  to  make 
his  defense  under  his  plea.^'^^ 

1419  Justification;  plea,  requisites 

In  an  action  for  slander  a  plea  of  justification  must  be  co- 
extensive with  the  slander,  and  need  not  go  farther.i'^2 

1420  Justification;  notice,  sufficiency 

The  sufticiency  of  a  notice  of  justification  in  an  action  for 
slander  is  tested  in  IMichigan  by  the  same  rules  as  a  notice  in 
any  other  action,  since  the  statute  of  1846.^^^ 


1421  Statute  of  limitations,  pleading 

A  plea  of  not  guilty  of  the  wrongful  act  within  the  period 
fixed  by  the  statute  of  limitations  is  not  good,  if  the  original 
wrong  is  not  of  itself  actionable  without  special  damage;  for 
the  reason  that  the  action  in  such  a  case  is  not  for  the  wrongful 
act  but  solely  for  its  consequences.  A  plea  of  not  guilty  is 
good  if  the  original  wrong  is  of  itself  actionable,  and  the  action 
is  brought  solely  for  the  wrongful  act,  for  the  plea  is  then  a 
complete  answer  to  the  declaration.^"^ 

1422  Statute  of  limitations,  plea  (D.  C.) 

And  for  further  plea  to  the  plaintiff's  declaration  this  defend- 
ant says  that  tlie  cause  of  action  in  said  declaration  mentioned 

did  not  accrue  within  years  next  before  the  filing  of 

the  above  entitled  suit. 

170(10415),  C.   L.    1897;    Sec.   3,  i"  Sanford  v.  Gaddis,  13  111.  340 

c.    126,    Kurd's    Stat.    1909;    Huson  (1851). 

V.    Dale,    19    Mich.    30 ;    Hawser   v.  its  Cresinper    v.    Reed,    25    Mich. 

Hawver,   78   111.   413.  450,  4.55    (1872). 

iTi  Farnan  v.  Childs,  66  111.  544,  i74  McConnol  v.  Kibbe,  33  111.  175, 

647  (1873).  179,  180  (1864). 


780  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

(Illinois)  rita 

(Commence  and  conclude  as  in  Sections  887  and  892)  That 
the  said  supposed  cause  of  action  in  the  said  additional  count 

in  the  said  declaration  mentioned  tiled    ,  did  not 

accrue  to  the  plaintitl'  at  any  time  within  tive  years  next  before 
the  commen'.'emeut  of  this  suit  in  manner  and  form  as  the  plain 
tiff  has  above  complained  against  it. 

Replicatiun 

(Commence  and  conclude  as  in  Section  92S)  That  the  said 
cause  of  action  in  the  said  additional  count  in  the  siiid  declara- 
tion did  accrue  to  him  within  four  years  next  before  the  com- 
mencement of  this  suit  in  manner  antl  form  as  he  has  above  com- 
plained against  the  defendant. 

GENERAL  ISSUE 

1423  Nature  and  effect 

A  plea  of  general  issue  (not  guilty)  puts  in  issue  all  of  the 
material  averments  in  the  declaration  and  admits  the  sufficiency 
of  the  respective  counts  to  which  the  plea  is  interposed.'"^  The 
defense  of  no  cause  of  action  or  that  the  defendant  is  not  liable 
is  good  under  the  general  issue  in  an  action  on  the  case.^^® 

1424  Forms  (D.  C.) 

The  defendant  for  a  plea  to  the  plaintiff's  declaration  and 
to  each  count  thereof  says  that  it  is  not  guilty  as  alleged. 

(Florida) 

Now  comes  the  defendant  by  ,  its  attorney,  and 

for  a  plea  says,  that  it  is  not  guilty. 

(Illinois) 

And  the  said  C  D,  defendant  in  this  suit,  by ,  its 

attorney,  comes  and  defends  the  wrong  and  injury,  when,  etc., 
and  says  that  it  is  not  guilty  of  the  said  supposed  trespasses  above 
laid  to  its  charge,  or  any  part  thereof,  in  manner  and  form  as 
the  said  plaintiff  hath  above  thereof  complained  against  it ;  and 
of  this  it,  the  said  defendant,  puts  itself  upon  the  country. 

175  Chicago    &    Northwestern    Ey.  it6  Denver     Township     v.     White 

Co.    V.    Goebel,    119     111.     515.     521       River  Log  &  Booming  Co.,  51  Mich, 
(1887);   Wenona  Coal  Co.  v.  Holm-       472   (1883). 
quist.    152    ni.    581,    591,     (1894); 
Louisville,    N.   A.   &   C.    Ry.   Co.  v. 
Red,  154  lU.  95,  96   (1894). 


CASE  781 

(Maryland) 

The  defendant,  by ,  his  attorney,  for  plea  to  the 

plaintiff's  declaration  in  the  above  case  filed,  says  that  he  did 
not  commit  the  wrongs  alleged. 

(Mississippi) 

Comes  the  defendant,  ,  by  his  attorney,  and  for 

plea  says  that  he  is  not  guilty  in  manner  and  form  set  forth 
in  plaintiff's  declaration  herein;  and  of  this  he  puts  himself 
upon  the  country. 

(West  Virginia) 

And  the  defendant  for  plea  in  this  behalf  says  that  he  is  not 
guilty  of  the  grievances  above  laid  to  his  charge  in  the  manner 
and  form  as  the  plaintiff  hath  above  thereof  complained  against 
him ;  and  of  this  he  puts  himself  upon  the  country. 

VERDICT 

1425  Florida 

We,  the  jury,  find  for  plaintiff  and  assess  his  damages  at 

dollars. 

So  say  we  all. 

,  Foreman. 

1426  Illinois,  dram-shop 

In  an  action  brought  under  the  Dram-Shop  act  against  a 
saloonkeeper  and  the  owner  of  the  premises  jointly,  the  form 
of  verdict  is  correct  if  against  both.^"^ 

1427  Illinois,  general 

Plaintiff 

We,  the  jury,  find  the  defendants  guilty  as  alleged  in  the 
declaration,  and  we  assess  the  plaintiff's  damages  at  the  sum  of 
dollars. 

Defendant 
We,  the  jury,  find  the  defendants  not  guilty. 

Verdict  for  one  and  against  another: 

We,  the   jur\-,   find  the  defendant,    ,  guilty  as 

alleged  in  the  declaration,  and  we  assess  the  plaintiff's  damages 

at  the  sum  of  dollars;  and  we  the  jury  find  the 

defendant,   ,  not  guilty. 

177  Triggs   V.    Mclntyre,    215    111. 
369,  376  (1905). 


782  ANNOTATED    FOKMS   OF    PLEADING    AND    I'KACliCL 

1428  Mississippi 

We,  the  jury,  find  for  the  plaintiff  and  assess  the  damages 
at dollars. 

We,  the  jury,  find  for  the  defendant,   


1429  Virginia 

We,  the  jury,  on  issue  joined,  find  for  the  plaintiff,  and  we 
assess  his  damages  at   dollars. 

1430  West  Virginia 

We,  the  jury,  upon  the  issue  joined  find  for  the  defendant. 

,    Foreman. 

JUDGMENT 

1431  Requisites 

In  an  action  for  the  unlawful  sale  of  intoxicating  liquors,  the 
judgment  should  not  att«'mpt  to  distribute  the  amount  reeovon-d ; 
but  if  such  a  distribution  is  made,  it  will  l)e  regarded  as  surplus- 
age.'^* A  judgment  against  sureties  on  a  saloonkeeper's  bond 
should  be  limited  to  the  penalty  of  the  bond.'"'* 

1432  Form  (Miss.) 

(For  commencement  and  conclusion  see  Chapter  XCV)     It 

is  therefore  considered  by  the  court  that  the  plaintiffs, , 

recover  of  and  from  the  defendants  the  mayor  and  boards  of 
aldermen  and  councilmen  of  the  city  of  ,  a  mu- 
nicipal corporation,  the  sum  of dollars  and  all  costs  of 

suit :  for  all  of  which  let  execution  issue. 

1433  Appeal 

A  plaintiff  is  not  required  to  appeal  from  a  judgment  ren- 
dered in  favor  of  a  co-defendant  to  an  action  for  a  several 
tort.  180 

iTsHelmuth  v.  Bell,  150  111.  263,  iso  Schmidt    v.   Chicago   City   5y. 

269  (1894).  Co.,  239  111.  494,  499  (1909). 

1T9  Merrinane  v.  Miller,  157  Mich. 
279,  285   (1909). 


CHAPTER  XXIII 
PERSONAL  INJURIES 


CAUSES   OF   ACTION 
GENERALLY 


l§ 


§§ 

1434  Cause  of  action  defined 

1435  Accident 

NEGLIGENCE 

1436  Actionable  negligence 

1437  Cause,  proximate;  test 

1438  Cause,    proximate;    law    and 

fact,  practice 

1439  Concurrent  causes,  parties 

1440  Contributory   negligence,   law 

and  fact 

1441  Due  care,  law  and  fact 

1442  Damages,  scope 

1443  Negligence    at    common    law, 

law  and  fact 

1444  Statutory  violations 

BESPONDEAT  8UPEBI0B 

1445  Doctrine 

1446  Gist  of  action 

1447  Application  of  doctrine,  char- 

itable institutions 

1448  Application  of  doctrine,  mu- 

nicipalities 

PARTIES 

1449  Aliens 

1450  Husband  and  wife 

1451  Joint   wrongdoers;    master 

and  servant 

1452  Lessor  and  lessee 

MA8TEB  AND   SERVANT 

1453  Liability,  scope 

1454  Appliance  and  machinery 

1455  Safe  place 


1456  Warning  of  danger 

1457  Rules  and  customs 

1458  Foreman's  negligence 

1459  Concurrent     negligence,     fel- 

low-servant, law  and  fact 

1460  Rest  period 


1461 

1462 

1403 
1404 
1465 
1466 

1467 

1468 

1469 

1470 


Municipality ;  notice,  neces- 
sity 

Municipality ;  notice,  requi- 
sites 

Municipality;  notice,  form 

Municipality;   notice,    service 

Next  of  kin 

Principal  and  agent,  non- 
feasance   and    misfeasance 

Public  officials,  agents  and 
contractors 

Railroad  companies,  unusual 
dangers 

Trespassers  and  licensees 

JURISDICTION 

Injury  and  death  In  another 
state 


1471 

1472 
1473 
1474 

1475 
1476 

1477 

1478 
1479 


DECLARATION 

Joinder  of  causes  of  action, 
damages 

Venue,  demurrer 

Character  of  defendant 

General  requisites 

Duty,  averment 

Negligence;  averment,  proxi- 
mate cause 

Negligence;      ordinance      or 
statute,  pleading 

Negligence;  receivers 

Negligence;  wanton  and  wil- 
ful, practice 


783 


784 


ANNOTATED   FORMS  OP  PLEADING   AND  PRACTICE 


ss 

1480  Negligence;    proof,    presump- 

tion 

1481  Notice   or   knowledge;    aver- 

ment, proof 

1482  Due  care;  averment,  unavoid- 

able, test 
148^  Due  care,  injury  to  child 

1484  Due  care,  proof 

1485  Custom,  proof 

14Sr.  Fellow-servant,  proof 
14S7  Assuniod  risk.  Instructions 
1488  Injury,  place 
1480  Notice  to  municipality 
1490  Sunivorship;     averment, 
practice 

1401  Survlvorslilp,  proof 

1402  Ad  damnum 

140.'{  Aniendniont.  next  of  kin 
1494  Words    and    phrases,    "neces- 
sary" 

SPECIAL  CAUSES  AND 
DECLARATIONS 

1405  Air  shaft.  Narr. 
149G  Appliances   or    Instrumentali- 
ties; declaration  requisites 

1497  Attractive  machinery ;  action, 

law  and  fact 

1498  Attractive    machinery;     coal 

conveyor,  Narr. 

1499  Attractive     machinery;     tor- 

pedo    in     railroad     shop, 
Narr. 

1500  Backing  train.  Injury  to  flag- 

man, Narr. 

1501  Backing  train,  injury  to  pas- 

senger. Narr. 

1502  Boiler  bursting.  Narr. 

1503  Brakes  defective.  Narr. 

1504  Bridgte.  collapse.  Narr. 

1505  Bridge,    guards    or    railings, 

Narr. 

1506  Bridge,   railroad;   "traveler," 

Narr. 

1507  Bridge,  repair,  Narr. 

1508  Bridge,  spanned  partly.  Narr. 

1509  B  r  i  d  g  e-tender's  negligence, 

action 


69 

1510  Careless    driving;    minor    In- 

jured, Narr. 

1511  Careless     running    of    street 

car;  lal)orer  Injured,  Narr. 

1512  Careless     running    of    street 

car;      pedestrian     Injured, 
Narr. 

COLLISIONS 

1613  Automo!)l!c    and    street    car, 
Narr. 

1514  Down  grade  collision,  Narr. 

1515  Elevateil  trains.  Narr. 
151(>  Street  cjir  and  buggy,  Narr. 

1517  Street    car    and    tire    engine, 

Narr. 

1518  Street  c-ar  and  wagon.  Narr. 
1510  Two  steam  trains,  Narr. 
1520  T\vo  street  cars,  Narr. 


1521 

1522 

152.'? 

1524 

1525 

l.-2r, 
1527 
1528 
1520 

1530 

1531 

1532 

1533 
1534 
1535 

1536 


Couplers  defective;  assuming 
risk,   jiroof 

Couplers  defective;  brakenian 
injureil.  Narr. 

Couplers  defective;  switch- 
man Injured.  Narr. 

Dangerous  premises;  invlta- 
tli>n,  action 

Deix>t  grounds;  trespasser, 
action,  proof 

Depot  grounds,  Narr. 

Derrick  injury,  Narr. 

Drover's  unsafe  place,  Narr. 

Electric  light,  action 

EXECTBIC  POWEB  INJUBIE8 

Bridge  wires,  dangerous  prox- 
imity, Narr. 

Bridge  wires ;  insulation  de- 
fective, Narr. 

Poles ;  cross-arms  defective, 
Narr, 

Poles ;  defective,  action, 

Poles ;  guards  lacking,  Narr. 

Transformer  defective,  con- 
sumer injured,  Narr. 

Transformer  defective,  in- 
spector injured,  Narr. 


PERSONAL  INJURIES 


785 


§§ 

1537  Wire  conductors  uninsulated, 

Narr. 


1538 

1539 

1540 

1541 

1542 

1543 

1544 

1545 
ir.-iG 
1547 
1548 
1549 
1550 

1551 

1552 

1553 

1554 

1555 

1556 

1557 
1558 

1559 
1560 

1561 
1562 

1563 
1564 

1565 


Elevator,  apartment  building, 
action 

Elevator,  appliances  and  con- 
struction defective,  Narr. 

Elevator  shaft  unguarded, 
Narr. 

Excavation  or  pit  unguarded, 
Narr. 

Exhibition  of  horses,  im- 
proper  management,   Narr. 

Explosion  and  panic  in  street 
car,  NaiT. 

Explosion,  carbonic  acid  gas, 
Narr. 

Fairs  and  carnivals,  action 

Fairs  aiul  carnivals,  Narr. 

Fenders  defective.  Narr. 

Fenders  or  headlights,  Narr. 

Fencing  right  of  way,  action 

Fire  communicated  by  loco- 
motive engine,  Narr. 

Footboard  on  engine  pilot  de- 
fective. Narr. 

Foundation  wall,  collapse, 
Narr. 

Frightening  horses  or  mules, 
automobile ;  Narr. 

Frightening  horses,  noise  of 
machinery,  Narr. 

Frightening  horses,  street  car 
whistle,  Narr. 

Hazardous  occupation,  action, 
damages 

Hazardous  occupation,   Narr. 

Independent  contractor,  ac- 
tion, respondeat  superior 

Independent  contractor,  Narr. 

"Jim  Crow"  car,  white  ix^rson 
compelled  to  ride  in.  Narr. 

Ladles,   adjusting.   Narr. 

Ladles,  incompetent  servant, 
Narr. 

Ladle  oven,  collapse,  Narr. 

Ladles,  spattering,  not 
warned,  Narr. 

Loading  and  unloading  cars, 


§§ 

1566 
1567 


1568 
1569 

1570 


1571 
1572 
1573 
1574 
1575 
1576 
1577 

1578 

1579 

1580 
1581 
1582 
158:5 
1584 
1585 

1586 

1587 
1588 

1589 
1590 
1591 
1592 

1593 
1594 
1595 

1596 
1597 


car  shoved  without  warn- 
ing, Narr. 

Loading  and  unloading,  sup- 
ports removed,  Narr. 

Loading  and  unloading, 
switch  engine  run  into, 
Narr. 

Loose  rail,  Narr. 

Man-hole  frame  on  pavement, 
Narr. 

Manufactured  articles,  action 

MINE   INJURIES 

Mining  act,  nature  and  scope 

Parties 

Declaration  requisites 

Collision,  Narr. 

Coupling  cars,  Narr. 

Dangerous  condition,  action 

Dangerous    condition,     gob, 

Narr. 
Dangerous      condition,      live 

wire,  Narr. 
Elevator,  air-break  defective, 

Narr. 
Explosion,  Narr. 
Hole  unguarded,  Narr. 
Insufficient  light,  Narr. 
Props,  action 
Props,  Narr. 
Tools,    machinery    defective, 

action 
Tramway  track,  construction, 

action 
Trapper,  ventilation,  action 
Trapper,  want  of,  Narr. 


Motor  or  trolley  unsafe,  Narr. 
Moving  stejim  cars,  action 
Moving  street  cars,  action 
Nitric  acid,  workman  injured, 

Narr. 
Obstruction  in  street,  Narr. 
Open  switch,  Narr. 
Pile  of    barrels    in    packing 

house,  Narr. 
Poisonous   food  stuffs,   Narr. 
Premises  unsafe,  action 


786 


ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 


1598  Protecting  property  from  an- 
other's lU'KllKence.  action 

1509  Tulley  Imrstink'.  uiacblnlst  In- 
jured, Narr. 

IGOO  Railroad  crossing,  gate  ordi- 
nance, action 

1001  Railroad  crossing,  Narr. 

1002  Railroad  platform.  Narr. 
1C>03  Roof,  covered  hole,  Narr. 
1604  Running  board  of  street  car, 

Narr. 
1005  Scaffold  injury,  Narr. 
IGOG  Scenic  railway,  action 
1007  Scenic  railway,  Narr. 

1608  Shafts   and    openings   unpro- 

tected, action 

1609  Shafts   and    oi)enlngs  unpro- 

tected, Narr. 

SIDEWALK    IN'JUBIES 

1610  Generally 

1611  Declaration  requisites 

1612  Elevated     private     sidewalk, 

Narr. 

1613  Hole  or  washout,  Narr. 
1014  Loose  plank,  Narr. 

1615  Obstructed  sidewalk,  Narr. 


1616 

1617 

1018 
1019 
1020 
1621 
1022 

1623 

1624 

1625 

1626 

1627 


Stairway  and  passageway,  ac- 
tion 
Stairway     and     passageway, 

Narr. 
Street  crossings,  action 
Street  crossing.  Narr. 
Streets  and  highways,  action 
Streets,   defective,    Narr. 
Sudden  backing  of  street  car, 

Narr. 
Sudden     starting     of     meat 

chopper,  Narr. 
Sudden  starting  of  street  car, 

alighting,  action 
Sudden  starting  of  street  car, 

alighting,  Narr. 
Sudden  starting  of  street  car, 

boarding,  Narr. 
Sudden  stopping  of  street  car, 

Narr. 


1028  Switch  defective,  Narr. 

1629  Switching,    statute,    violation 

1030  Switrhiiig,  negligent.  Narr. 

1031  Swing,  aerial,  action 
1(;*{2  Swing,  aerial,  Narr. 

1633  Tracks    In     dose     proximity. 

Narr. 

1634  Train     service,     incompetent, 

Narr. 

1635  Trestle  accident.  Narr. 

10.30  I'nguarded  machinery,  action 

1637  Unguarded  machinery,  dec- 
laration, sutliciency 

10.38  I'nguarded   nwK'hlnery,    Narr. 

ir>39  rnsoawortliy  vessel,  Narr. 

ICAO  Wrongful  death,  action,  na- 
ture 

1641  Wrongful   death,  action,  dis- 

tinctions 

1642  Wrongful  death,  notice 

BILL    OF    PARTICULARS 

1043  Motion 

1644  Bill  of  ivartlculars 

DEMURRER 

1645  Form 

SPECIAL   DEFENSES,    PLEAS, 
ETC. 


ASSUMED   RISK 

1040  Origin  of  doctrine 

1047  L)o<trine  of  assumed  risk 

1648  Scope   of    doctrine,    law 

and 

fact 

1649  Presumptions 

1650  Promise  to  repair,  law 

and 

fact 

1651  Unknown  risks 

1052  Obeying  command 

1653  Dangerous  places 

1054  Ordinary  tools 

1055  Personal  and  statutory  duties 

10.50  Minors 

1057  Pleading,  general  issue 

1658  Law  and  fact 

PERSONAL   INJURIES 


787 


CONTBIBUTORY    NEGLIGENCE 
§§ 

1G59  Doctrine 

IGGO  Rules  of  employment 

1G61  Minors,  brother's  negligence 

1G62  Minors,  parent's  negligence 

1663  Mining  act 

1664  Railroad  crossing,  negligence 

1665  Pleading  and  practice 

1666  Plea,  replication,  rejoinder 

1667  Law  and  fact 

FELLOW-SERVANT 

1668  Doctrine 

1669  Strangers 

1670  Concurrent  negligence 

1671  Vice-principal 

1672  Miners 

1G73  Law  and  fact 

MINE  INJURIES 

1674  Class  legislation 

1675  Dangerous  places 

1G7G  Wilful   violation  of  statute 


1677  Ordinary  care,  law  and  fact 

RELEASE     AND     SETTLEMENT 

1678  Covenant  not  to  sue  and  re- 

lease, distinction 

1679  Employer's    liability,    release, 

fraud 


1680  Law  and  fact 

1681  Plea 

1682  Replication 

1683  Rejoinder 


1684  Res  ipsa  loquitur 

1685  Sidewalk  accidents 

1686  Statute  of  limitations,  pleas 

1687  Statute   or   ordinance,    viola- 

tion 

GENERAL  ISSUE 

1688  Notice  of  claim 

1689  Ownership  and  control 

1690  Release  and  settlement 

1691  Survivorship 

GROUNDS  OF  DEFENSE 

1692  Form 

MISCELLANEOUS 

1693  Assignment  of  right  of  action 

1694  Assigmnent  and  retainer 

1695  Attorneys'  fees,  motion 

1696  Attorneys'  fees,  judgment 

attorney's   LIEN 

1697  Nature  and  scope 

1698  Notice 

1699  Petition,  filing 

1700  Petition 

1701  Order 


CAUSES  OF  ACTION  GENERALLY 

1434  Cause  of  action  defined 

In  personal  injuries,  the  cause  of  action  is  the  act  or  thing 
done  or  omitted  to  be  done  of  the  defendant  towards  the  plain- 
tiff which  causes  the  grievance  for  which  the  law  gives  a 
remedy.'     The  gist  of  the  action  is  the  defendant's  negligence.^ 

1435  Accident 

Xo  action  is  maintainable  for  a  personal  injury  which  is  the 
result  of  pure  or  unavoidable  accident.     Ordinarily,  an  occur- 


1  Swift  Co.    V.    Gaylord,    229    111. 

330.     3.'^4  (1907);     South    Chicago 

City    Rv.  Co.    V.    Kinnare,    216    111. 

451,   452  (1905);    Lee   v.   Republic 


Iron  &  Steel  Co.,  241  111.  372,  378 
(1909). 

2  Pennsylvania  Co.  v.  Conlan,  101 
111.    93,    103    (1881). 


788  ANNOTATED   FORMS  OF   PLEADING   AND   TRACTICE 

rence  is  designated  as  purely  accidental  when  its  real  cause 
cannot  be  traced  or  the  cause  is  not  apparent, ^  Where  there  is 
negligence,  there  is  no  unavoidal)le  accident  and  the  person  or 
corporation  who  is  guilty  of  negligence  is  liable.''  A  party  may 
recover  for  an  injury  which  is  the  result  of  another's  negligence 
as  an  efificient  cause  combining  with  inevitable  accident  or  in- 
animate thing,  while  the  injured  or  deceased  party  was  in  the 
exercise  of  ordinary  care  for  his  own  safety.'* 

NEGLIGENCE 

1436  Actionable  negligence,  law  and  fact 

Actionable  negligence  is  based  upon  the  want  of  ordinary 
care  and  skill  towanl  a  person  to  whom  the  defendant  owes  a 
legal  duty  in  that  regard  and  an  injury  results  from  a  breach 
of  that  duty,  and  none  other."  In  Illinois,  there  are  no  degrees 
in  actionable  negligence." 

1437  Cause,  proximate;  test 

No  cause  of  action  e.xists  for  a  violation  of  a  duty  which  is  not 
the  proximate  cause  of  the  injury.*  A  negligent  act  is  the  prox- 
imate cause  of  an  injury,  if  the  consequences  follow  in  un- 
l)roken  sequence  from  the  wrong  to  the  injuiy,  without  any  effi- 
cient cause  intervening,  and  if,  i)y  the  exercise  of  ordinary  earc 
at  the  time  of  the  negligence,  the  wrongdoer  might  have  fore- 
seen that  some  injury  might  result  from  tiie  negligence,  although 
the  particular  injurious  consequences  and  the  precise  manner 
of  their  infliction  couUl  not  reasonably  have  been  foreseen.'^  The 
nearest  independent  cause  which  is  adequate  to  produce  and  docs 
bring  about  an  injury  is  its  proximate  cause  and  supersedes  any 
remote  cause.**^ 

3  Chicago    &    Eastern    Illinois    R.  7  Chicago,   Rock    Islanrl   &   Pacific, 

Co.    V.    Reilly,    212     111.    506,    511  Rv.  Co.  v.  Hamler,  215  111.  525,  532, 

(1904);     Lewis    v.     Flint    &    Pere  541    (1905). 

Marquette    Ry.    Co.,    54    Mich.    55  **  Cook    v.    Big    Muddv-Cartervillo 

(1884).  Mining  Co.,  249  111.  41,  50  (1911). 

*  Flanagan  v.  Chicago  City  Ry.  Co.,  o  Heiting  v.  Chicago,  Rock  Island 

243  111.  456,  460    (1910).  &  Pacific  Ry.  Co.,  252  111.  466,  474 

5  Commonwealth    Electric     Co.    v.  (1911);     Seith     v.     Commonwealth 

Rose,  214  111.  545,  554   (1905);   Illi-  Electric     Co.,     241     111.     252,     259 

nois  Central  R.  Co.  v.  Siler,  229  111.  (1909);    Illinois    Central    R.    Co.    v. 

390,  397   (1907);  Yarber  v.  Chicago  Siler,  229  111.  390,  394  (1907). 

&  Alton  Ry.  Co.,  235  111.  589  (1908).  lo  Yeates  v.  Illinois  Central  R.  Co., 

0  Gibson  v.  Leonard,  143  111.  182,  241  111.  205,  211   (1909). 
189,  193    (1892). 


PERSONAL  INJURIES  789 

1438  Cause,  proximate;  law  and  fact,  practice 

The  question  of  proximate  cause  of  an  injury  is  ordinarily  a 
question  of  fact,  to  be  determined  by  the  jury  from  a  consid- 
eration of  all  the  attending  circumstances.  It  might,  however, 
arise  as  a  question  of  law  or  pleading  when  the  facts  are  not 
disputed  or  they  are  such  that  there  can  be  no  difference  in 
the  judgment  of  reasonable  men  as  to  the  inferences  to  be 
drawn  from  them.^^  The  proximate  cause  of  an  injury  is  a 
question  of  fact  w'here  the  evidence  is  conflicting.  ^2  "When  the 
proximate  cause  is  a  question  of  fact,  it  should  be  submitted  to 
the  jury  under  proper  instructions.^  ^ 

1439  Concurrent  causes;  parties 

For  an  injury  produced  by  two  causes  acting  at  the  same 
time,  the  party  who,  himself  or  by  his  agent  or  representative, 
puts  in  motion  the  essential  or  proximate  cause  of  injury  is 
liable  for  the  same.^^  Either  or  both  parties  nia}'  be  held  respon- 
sible for  the  consequences  resulting  from  their  combined  negli- 
gence when  it  constitutes  the  proximate  cause  of  the  injury.^'* 

1440  Contributing  negligence,  law  and  fact 

Contributory  negligence  that  is  the  proximate  cause  of  an 
injury  will  defeat  a  recovery.^**  A  person  who  exercises  a  de- 
gree of  care  that  is  required  of  a  reasonably  prudent  person 
under  the  same  circumstances  is  not  guilty  of  contributory  neg- 
ligence.^^ The  negligence  of  a  companion  or  driver  will  not 
excuse  a  party's  own  negligence  in  not  taking  proper  precaution 
to  avoid  injury. ^8  Whether  a  person  has  exercised  the  neces- 
saiy  degree  of  care  that  is  required  of  him  must  be  determined 
from  a  consideration  of  all  of  the  circumstances  leading  up  to 

"Illinois  Central  R.  Co.  v.  Siler,  ClOOe)  ;    Seifrel,    Cooper    &    Co.    v. 

229  111.  393;  Nail  v.  Taylor,  247  111.  Trocka,  218  III.  559,  562    (1905). 

5S0,  585  (1910)  ;  Heiting  v.  Chicago,  i''  Chicago  &  Alton  K.  Co.  v.  Har- 

E.  I.  &  P.  Ry.  Co.,  252  ill.  472.  rington,  192  111.  9,  29   (1901). 

12  Waschow  V.  Kelly  Coal  Co.,  245  i"  llynn  v.  Chicago  City  Ey.  Co., 
111.  516,  520   (1910).  250  111.  460,  464   (1911). 

13  Chicago  &  Alton  R.  Co.  v.  Har-  it  Rosenthal    v.    Chicago   &    Alton 
rington,  192  111.  91,  36  (1901).  E.  Co.,  255  111.  552,  556  (1912). 

14  Waschow  V.  Kelly  Coal  Co.,  245  is  Flynn  v.  Chicago  City  Ry.    Co., 
111.  520;  Chicago  &  Eastern  Illinois  250  111.  464. 

E.  Co.  V.  Kimmel,  221  111.  547,  550 


790  ANNOTATED    FOKMS   OF    I'LEADINCJ    AND    TRACTICE 

tlie  occurrence  or  accident;  and  where  tlie  evidence  is  conflict- 
ing, the  question  of  negligence  is  for  the  jury.»» 

1441  Due  care,  law  and  fact 

Due  care  and  caution  means  the  reasonable  and  prudent 
exercise  of  care  by  a  person  for  his  own  safety  and  to  avoid 
injury,  the  exercise  of  which  depends  upon  all  of  the  conditions 
and  circumstances  that  surround  the  i)ei-son  at  tiie  time  he  is 
called  upon  to  act.  Age,  defective  vision  or  hearing,  or  other 
infirmity,  are  conditions  to  be  considered  in  determining  wiietijcr 
due  care  and  caution  have  been  used.-"  A  deaf  or  blind  person 
is  bound  to  exercise  a  greater  degree  of  care  for  his  own  safety 
than  should  one  who  is  not  thus  affected.*- ^  A  party  is  not 
absolved  from  the  necessity  to  exercise  such  care  as  the  law 
demands,  by  the  presumption  that  every  person  will  perform 
the  duty  enjoined  by  law  or  imposed  by  contract  upon  him  and 
that  the  law  does  not  impase  a  duty  to  anticipate  negligence  in 
others."  Voluntary  intoxication  does  not  excuse  a  person  from 
exercising  such  care  as  may  reasonably  be  expected  from  one 
who  is  sober.-3  The  exercise  of  due  care  is  a  (piestion  of  fact 
for  the  determination  of  the  jury  under  proper  in.stnictions.-' 

1442  Damages,  scope 

A  party  may  recover  for  personal  injuries  arising  from  negli- 
gence which  has  been  aggravated  by  organic  tendencies  and  the 
treatment  of  physicians.'-^ 

1443  Negligence  at  common  law,  law  and  fact 

The  existence  of  common  law  negligence  is  a  question  of 
fact.-°  The  commission  or  the  omission  of  an  act  or  a  duty  made 
actionable  at  common  law  constitutes  common  law  negligence. 

19  Rosenthal  v.  Chicago  &  Alton  23  Keeshan  v.  Elgin,  Aurora  & 
R.  Co.    255  111.  557.                                    Southern  Traction  Co.,  229  111.  533, 

20  Rosenthal    v.    Chicago   &   Alton      537  (1907). 

R    Co.,  255  111.  550,  560.  -*  Bonato    v.    Peabody    Coal    Co., 

21  Toledo,   Peoria  &   Western   Rv.       248  111.  422   (1911). 

Co.    V.    Hammett,    220    111.    9,    14  25  Chicago  City  Ry.  Co.  v.  Saxby, 

(1906).  "13  111.  274,  281    (1904). 

22  Schlauder  v.  Chicago  &  Southern  20  Butler  v.  Aurora,  Elgin  &  Chi- 
Traction     Co.,     253     lU.     154,     159  cago  R.  Co.,  250  111.  47,  50  (1911). 
(1912). 


PERSONAL  INJURIES  791 

1444  statutory  violations 

Such  persons  only  as  are  intended  to  be  benefited  or  pro- 
tected by  a  statute  can  rely  upon  its  violation  as  giving  them 
a  cause  of  action.-'^  A  person  who  is  injured  as  a  result  of  a 
violation  of  an  ordinance  passed  for  the  protection  of  members 
of  his  class  may  maintain  an  action  against  the  person  who  is 
guilty  of  the  violation  and  the  injury .2 » 

RESPONDEAT.  SUPERIOR 

1445  Doctrine 

Every  person  who  manages  his  affairs  by  an  agent  or  a  ser- 
vant is  answerable  to  third  persons  for  damages  which  result 
from  the  agent's  or  servant's  negligent  performance  of  his  work 
done  in  the  course  of  his  employment  and  withhi  the  scope  of 
his  authority.-'*  An  employer  is  responsible  for  his  own,  or  his 
employee's  failure  to  anticipate  the  results  that  naturally  fol- 
low cither's  acts;^"  but  not  for  those  which  cannot  be  fore- 
seen and  which  the  employer  is  under  no  moral  obligation  to 
notice.3^  An  injury  which  is  the  result  of  the  fault  of  an  em- 
ployee or  an  agent,  concurring  with  that  of  the  employer,  ren- 
ders both  liable.3^  An  employer  is  liable  to  third  persons  for 
the  negligent  conduct  of  his  employee  while  acting  within  the 
line  of  his  duty  and  in  obedience  to  the  employer's  authority, 
independently  of  whether  there  is  any  liability  of  the  employee 
to  the  employer.^^ 

1446  Gist  of  the  action 

In  an  injury-  resulting  from  the  negligence  of  an  employee, 
■  the  employee's  negligence  is  the  gravamen  of  the  charge,  whether 
the  action  is  against  the  employer  severally  or  jointly  with 
the  employee ;  and  if  the  employee  is  not  negligent  or  is  found 
not  guilty,  there  can  be  no  cause  of  action  against  the  em- 
ployer.^^ 

27  Gibson  V.  Leonard,  143  111.  182,  3i  Pinkelj   v.    Chicago   &   Eastern 
196   (1892).  Illinois    K.    Co.,    246    111.    3/0,    380 

28  Conrad    V.    Springfield    Consoli-  (1910)-      ^  ,^          „              n  „i    p« 
dated  Ky  Co    ''40  111.12,16(1909).  32  Kleinfelt    v.    Somers    Coal    Co., 

29  Harding 'v.   St.   Louis  National  156  Mich.  473,  479  (1909). 

Stock     Yards,     242     111.     444,     449  33  Star    Brewing    Co     v.    Hauck, 

?1909)  222  111.  348,  353  (1906). 

30  Yeates    v.    Illinois    Central    E.  34  Hayes  v.  Chicago  Tel.  Co.,  218 
Co.,  241   111.  211.  111.414,418  (1905). 


792  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

1447  Application  of  doctrine,  charitable  institutions 

The  doctrine  of  respondeat  superior  lias  no  application  unless 
the  relation  of  employment  exists.^^  The  essential  elements  of 
an  employment  are  the  power  of  the  employer  to  direct  the  em- 
ployee with  reference  to  what  work  he  shall  do  and  the  manner 
in  which  that  work  should  be  performed,  and  the  power  to  dis- 
charge and  remove  him.^°  A  person  who  is  a  general  employee 
of  one  party  may  be  hired  by  his  employer  to  another  for  some 
special  service,  so  as  to  become,  as  to  such  service,  the  employee 
of  the  other,  the  test  being  whether,  in  the  particular  service, 
the  employee  continues  to  be  under  the  direction  and  control  of 
his  general  or  special  employer.  Whether  a  person  is  in  the 
employ  of  a  general  or  special  employer  depends  upon  the 
circumstances  in  each  ease.^^  The  rule  or  principle  of  respon- 
deat superior  has  no  application  to  public  or  private  institutions 
organized  for  purely  charitable  purposes.'*^ 

1448  Application  of  doctrine,  municipalities 

A  municipality  is  not  liable,  under  the  doctrine  of  respon- 
deat superior  for  the  negligent  acts  of  its  agents  or  servants 
engaged  in  executing,  enforcing  or  giving  effect  to  its  police 
ordinances  and  regulations.^^  This  rule  is  based  on  the  prin- 
ciple that  the  acts  of  the  officers  or  agents  of  the  municipality 
that  are  illegal  and  unlawful  are  ultra  vires  where  a  munici- 
pality is  simply  exercising  its  police  power.**^  But  a  munici- 
pality is  liable  for  the  negligent  acts  of  its  officers  or  agents 
when  it  is  given  by  statute  private  or  proprietary^  rights  for 
its  benefit  and  profit,  and  an  injury  results  through  an  exer- 
cise of  these  rights."*^ 

PARTIES 

1449  Aliens 

An  action  for  personal  injuries  may  be  brought  for  the  bene- 
fit of  a  nonresident  alien. ^^ 

35  Harding  v.  St.  Louis  National  Long's  Admrs.,  17  Gratt.  375 
Stock  Yards,  242  111.  45L  (Va.  1867). 

36  Yeates  v.  Illinois  Central  R.  *^  Tollefson  v.  Ottawa,  228  111. 
Co.,  241  111.  212.  134,   ]3S    (1907). 

37  Harding  v.  St.  Louis  National  -Ji  Chicago  v.  Selz.  Schwab  &  Co., 
Stock  Yards,  242  111.  449.  202    111.    545    (1903);    Tollefson    v. 

38  Parks   V.   Northwestern   Univer-  Ottawa.  228  111.  137. 

sity,  218  111.  381,  384  (1905).  •i^  Guianios  v.  De  Camp  Coal  Min- 

39  Tollefson    v.    Ottawa.    228    111.       ing  Co.,  242  111.  278,  283   (1909), 
134,     136      (1907);      Richmond     v. 


PERSONAL  INJURIES  793 

1450  Husband  and  wife 

At  common  law  the  husband  was  required  to  join  his  wife  in 
an  action  for  injuries  to  her  person  or  reputation.^^  i^  mi. 
nois  this  rule  has  no  application  on  account  of  the  Married 
Woman's  act  of  1861.  Under  this  act  the  wife  alone  must  sue 
for  injuries  sustained  by  her.^*  So,  in  Michigan  the  wife,  and 
not  the  husband,  must  sue  for  personal  injuries  to  her.^^ 

1451  Joint  wrong-doers,  master  and  servant 

A  person  is  not  relieved  from  liability  for  his  negligent  act  by 
the  mere  fact  that  another's  negligent  act  contributed  to  the 
iujur\\^'^  Each  wrongdoer  is  responsible  for  the  whole  amount 
of  damages,  without  apportionment.^^  The  employer  and  an 
employee  may  be  joined  in  an  action  for  personal  injuries  when 
Ihe  latter  has  acted  in  the  capacity  of  vice-principal  and  tlie 
injury  is  the  result  of  the  violation  of  a  common  duty  resting 
upon  both.^^ 

1452  Lessor  and  lessee 

The  negligent  operation  of  a  railway  renders  the  lessor  and 
the  lessee  liable  for  the  resultant  injury,  whether  the  lesssor  is 
guilty  of  actual  negligence  or  not.^^ 

MASTER  AND  SERVANT 

1453  Liability,  scope 

An  employer  is  responsible  for  the  negligent  performance 
of  his  personal  and  positive  duties  to  his  employees  when  the 
duties  are  performed  by  himself  or  by  any  of  his  employees 
and  the  injury  would  not  have  occurred  but  for  such  negli- 
gence. An  employee,  of  whatever  rank  or  authority  who  is 
authorized  by  his  employer  to  perform  his  personal  duties  is 

<3  Chicago   V.   Speer,  66   111.    154,  *'  Devaney   v.    Otis  Elevator   Co., 

156    (1872).  251  111.  28,  39   (1911). 

4*  Chicago  V.  Speer,  supra;  Haw-  48  Republic    Iron    &    Steel    Co.    v. 

ver    V.    Hawver,    78    111.    412,    414  Lee,  227  111.  246,  254  (1907). 

(1875),  -te  Chicago   &    Eastern    Illinois   R. 

45  Roberts  v.  Detroit,  102  Mich.  Co.  v.  Schmitz,  211  111.  416,  458 
64    67    (1894).  (1904);  Chicago  &  Western  Indiana 

46  Flanacran  V.Wells  Bros.  Co.,  237  R.  Co.  v.  Newell,  212  111.  332,  335 
111.  82,  87   (1908).  (1904). 


794  ANNOTATED   FORMS   OF   PLEADING    AND    PRACTICE 

a  vice-principal. '^'^  The  personal  duties  ol"  the  ciiipluyei-  are: 
the  duty  to  provide  reasonably  safe  machinery  and  appliances; 
the  duty  to  furnish  a  reasonably  safe  place  in  which  to 
work;  the  duty  to  provide  for  inspection  and  repair  of  premises 
and  appliances ;  and  the  duty  to  inform  immature,  ignorant  or 
unskilled  employees  of  the  dangers  of  the  employment.^  ^ 

1454  Appliance  and  machinery 

An  employer  is  liable  for  an  injury  resulting  from  defective 
appliance  or  machinery  when  he  has  failed  to  exercise  reason- 
able and  ordinary  care  and  diligence  in  the  selection  and  sup- 
plying of  the  appliance  or  machinery  causing  the  injury .^2  j^ 
person  who  assumes  to  furnish  employees  of  an  ind(»pendent 
contractor  implements  or  instrumentalities  to  do  the  work,  is 
required  to  provide  reasonably  safe  and  suita])le  implements; 
and  such  person  renders  himself  liable  to  such  employees  in 
damages  for  a  failure  to  perform  tiiis  duty  if  it  results  in  in- 
jury to  them.*'"'''^  The  employee  is  required  to  notice  all  patent 
and  obvious  defects  which  the  exercise  of  ordinary  care  for  his 
own  safety  Avould  discover.^'*  A  party  is  not  liable  for  an 
injury  resulting  from  a  latent  defect  in  the  material  employed 
in  the  construction  of  machinery,  when  the  machinery  was  con- 
structed of  proper  material,  free  from  defects,  when  the  known, 
usual,  and  well  recognized  tests  were  used  in  selecting  the 
machinery,  and  when  experienced,  skilful  and  priident  servants 
were  employed  to  use  it.^^ 

1455  Safe  place 

It  is  the  duty  of  an  employer  to  use  reasonable  diligence  to 
provide  his  employee  with  a  reasonably  safe  place  in  which  to 
work,  and  to  use  reasonable  care  to  maintain  the  safety  of  the 
place,  except  where,  during  the  progress  of  the  work  and  the 
workmen  engaged  in  it,  the  conditions  are  changing  from  time 
to  time;  making  it  impractical  to  do  so,  or  where  it  is  the  duty 

soBaier  v.  Selke,  211  111.  512,  517  52  Oir  v.   Waterson,  228  111.    138, 

(1904)  ;  Chicago  Union  Traction  Co.  141    (1907);    Green    v,    Sansom,    41 

V.  Sawnsch,  218  111.  130,  136  (1905)  ;  Fla.  94,  103    (1909). 

Odin   Coal   Co.   v.   Tadlock,   216  111.  53  Green  v.  Sansom,  supra. 

624,  628    (1905).  54  Green  v.  Sansom,  supra. 

51  Baier  v.  Selke,  siipra;  Mobile  &  ss  Illinois  Central  R.  Co.  v.  Phil- 
Ohio  E.  Co.  V.  Godfrey,  155  111.  78  lips,  49  111.  234,  237  (1868);  Toledo, 
(1895);  Schillinger  Bros.  Co.  v.  Wabash  &  Western  Ry.  Co.  v.  Beggs, 
Smith,  225  111.  74,  79  (1907).  85  111.  80,  83  (1877). 


PERSONAL  INJURIES  795 

of  the  employee  to  make  dangerous  places  safe.  This  duty  is 
a  continuing  one  and  cannot  be  delegated  to  another  so  as  to 
relieve  the  employer  from  liability  for  injuries  resulting  from 
its  negligent  performance.^^ 

1456  Warning  of  danger 

The  employer  owes  a  duty  to  an  employee  to  warn  him  of 
any  peculiar  and  unusual  dangers  which  might  be  encountered 
in  the  performance  of  the  employer's  work  and  to  warn  the 
employee  of  latent  and  hidden  dangers  which  the  employer  has 
reason  to  anticipate  when  the  dangers  are  of  such  a  nature 
that  the  employee,  from  lack  of  knowledge  may  not  appreciate 
or  understand  them  by  an  ordinary  inspection,  although  he 
might  be  a  man  of  average  intelligence.^^  The  duty  of  an 
employer  to  warn  an  employee  before  he  is  exposed  to  the 
risk  of  a  dangerous  substance  used  in  his  employment  arises 
when  the  substance  is  liable  to  injure  a  person  who  might 
handle  it,  when  the  employer  knows,  or  by  the  exercise  of  ordin- 
ary diligence  might  know  that  the  substance  is  dangerous  and 
capable  of  producing  injury,  and  when  the  employee  does  not 
know  that  the  substance  is  dangerous  and  likely  to  injure  him, 
and  he  has  no  equal  opportunity  with  his  employer  of  know- 
ing thereof  at  the  time  of  the  injury.^^  An  employer  is  not 
liable  for  an  injury  to  an  employee  when  it  is  the  result  of  a 
failure  to  warn  him  of  dangers  which  are  patent  to  ordinary 
intelligence.^^ 

1457  Rules  and  customs 

An  employer  who  conducts  a  business  with  different  branches 
owes  a  duty  to  his  employees  to  make,  publish  and  enforce  rea- 
sonable rules  and  regulations  for  the  promotion  of  their  safety; 
but  the  failure  to  perform  the  duty  will  not  excuse  the  em- 
ployer from  recognizing  an  employee's  custom  having  the  effect 
of  promoting  such  safety,^** 

50  Montgomery   (Village)   v.  Eob-  Illinois   E.    Co.,    246    111.    370,    377 

ertson,    229    111.    466,    472     (1907);  (1910). 

Kellevville  Coal  Co.  v.   Bruzas,  223  59  Montgomery    (Village)    v.  Eob- 

111.   595.   601    (1906);    Illinois   Steel  ertson,  229  111.  471. 

Co.  V.  Ziemkowski,  220  111.  324,  331  eo  Yeates  v.  Illinois  Central  E.  Co., 

(1906).  241    111.    210;     St.    Louis    National 

57  Postal  Telegraph-Cable  Co.  v.  Stock  Yards  v.  Godfrey,  198  111.  288, 
Likes,  225  111.  249,  260  (1907).  294,  295    (1902). 

58  Pinkley   v.    Chicago   &    Eastern 


796  ANNOTATED   FORMS   OF   FLiLVDING   AND   FRACTICL 

1458  Foreman's  negligence 

When  the  injury  is  the  result  of  a  foreman's  negligent  per- 
formance of  his  duties  as  foreman,  the  employer  is  liable,  but 
not  when  it  is  the  result  of  and  act  as  a  fellow-servant.*^ 

1459  Concurrent  negligence,  fellow-servant,  law  and  fact 

The  employer  is  responsible  for  the  negligence  of  fellow-ser- 
vants concurring  with  his  negligence  which  constitutes  the  prox- 
imate cause  of  the  injury.*^-  Whether  servants  of  a  coininou 
employer  are  fellow-ser\'ants,  is  a  question  of  fact  to  be  deter- 
mined from  all  of  the  circumstances  in  each  case,  unless  the 
facts  are  conceded  or  there  is  no  dispute  with  reference  thereto, 
and  all  reasonable  men  will  agree,  from  the  evidence  and  the 
legitimate  conclusions  to  be  drawn  therefrom,  of  the  existence 
of  the  relation. °^  The  eager  and  engineer  operating  cars  in  a 
coal  mine  are  not  necessarily  fellow-servants."-' 

1460  Rest  period 

An  employer  is  liable  for  an  employee's  negligence  during 
his  rest  period,  if  the  act  wliich  has  resulted  in  injury  is  within 
the  scope  of  his  duties.*'^ 


1461  Municipality;  notice,  necessity 

The  statutory  notice  to  a  municipality  of  a  claim  for  per- 
sonal injuries  must  be  given  before  and  not  after  suit  has  been 
commenced.  The  giving  of  the  notice  is  one  of  the  essential 
elements  of  a  good  cause  of  action  against  a  municipality  and 
must  exist  at  the  time  of  the  commencement  of  the  action 
against  it.^^  The  statutory  requirement  of  notice  to  a  munici- 
pality in  cases  of  personal  injuries  extends  to  municipal  em- 
ployees and  is  valid. ^^ 

ciBaier  V.  Selke,  211  111.  516.  esLangguth   v.    Glencoe,    253    111. 

82  Yeates  V.  Illinois  Central  R.  Co..  505,   507,   509    (1912);   Pars.  6  and 

241  111.  213;   Sturm  v.  Consolidated  7,  c.  70,  Kurd's  Stat.  1909,  p.  1-^47. 

Coal  Co.,  248  111.  20,  31  (1910).  e-  Condon  v.  Chicago,  249  111.  596, 

63  and  64  Sturm      V.      Consolidated  599,  600  (1911)  ;  Sec.  2.  Laws  1905, 

Coal  Co.,  248  111.  28.  p.  Ill  (Kurd's  Stat.  1909,  p.  1248). 

85  Tijan  v.  Illinois  Steel  Co.,  250 
111.  554,  559,  560  (1911). 


PERSONAL   INJURIES  797 

1462  Municipality,  notice,  requisites 

The  notice  required  by  statute  to  be  given  to  a  municipality 
must  state  the  exact  date  and  hour  of  the  injury  or  accident.^^s 

1463  Municipality,  notice,  from  (Mich.) 
State  of  Michigan,  1 

county,  I  ss. 

village.  J 

To  the  clerk  of  the  village  of ,  as  aforesaid. 

Please  take  notice  that  I  intend  to  hold  the  said  village  of 

liable  for  the  damages  sustained  by  me  by  reason 

of  injuries  to  my  person  caused  by  the  negligence  of  said  vil- 
lage as  set  forth  substantially  in  the  statement  herewith  pre- 
sented, under  the  provisions  section  2775  of  the  Compiled 
Laws  of  1897  of  the  state  of  Michigan  as  amended,  therein  also 
setting  forth  substantially  the  time  when  and  the  place  where 
such  injury  took  place,  the  manner  in  which  it  occurred,  and 
the  extent  of  such  injury,  so  far  as  known,  the  amount  of  dam- 
age for  such  negligence,  and  injury,  to  be  hereafter  filed  with 
the  common  council  of  said  village  in  accordance  with  the  pro- 
visions of  section  2754  of  the  Compiled  Laws  of  1897,  state  of 
Michigan. 

Dated  this day  of ,  19 .  . . 

Respectfully  submitted, 


Claimant. 
Statement 

In  accordance  with  the  above  notice,  the  said of 

the  village  of  aforesaid,  hereby  presents  to  the 

council  o'f  said  village  her  statement  showing  the  time,  place, 
manner,  and  extent  of  her  injuries  as  far  as  known,  as  follows: 

That  on  the day  of ,  19.  .,  she,  the 

said in  company  with  others,  was  walking  west- 
ward upon  the  public  sidewalks  of  said  village,  to  wit,  the  side- 
walk abutting  upon  and  situated  on  the  south  side  of  lot  .... 

owned  by ,  on  the  northwest  corner  of 

and streets,  in  said  village,  and  it  then  and  there 

and  previously  became  and  was  the  duty  of  said  village  to 
have  said  walk  reasonably  safe  and  convenient  for  public 
travel,  and  the  said  sidewalk  was  under  the  care  and  control 
of  the  said  village  and  the  same  was  open  to  public  travel; 
that  said  sidewalk  was  unsafe  for  public  travel;  that  said 
village  had  knowledge  that  the  said  sidewalk  was  not  reason- 
ably safe  for  public  travel,  and  had  previously  served  notice 
upon  the  owner  of  the  premises  abutting  upon  said  walk  to 
rebuild  the  same;  that  the  said  village  had  sufficient  notice 

esOiiimette  v.  Chicago,  242  111. 
501,  507  (1909)  ;  Condon  v.  Chicago, 
249  111.  602. 


798  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

that  the  said  sidewalk  bad  not  been  rebuilt,  but  had  neg- 
ligently failed  to  cause  the  same  to  be  repaired  or  rebuilt,  so 
that  the  sidewalk  would  be  reasonably  safe  for  pedestrians 
and  for  public  travel  after  said  village  had  had  reasonable 
opportunity  so  to  do ;  and  because  of  such  neglect  the  said 
,  while  walking  along  said  sidewalk,  in  the  dark- 
ness of  the  evening,  to  wit,  about  the  hour  of   ....   o'clock 

p.  m.,  when  within  about   feet  from  the  west 

end  of  said  sidewalk,  and  without  carelessness  or  negligence 
upon  her  part  was  tripped  by  a  loose  plank,  and  thrown  to 
the  ground.  And  by  reason  thereof,  and  the  negligence  of  said 
village  as  aforesaid  in  not  constructing  or  repairing  said  side- 
walk after  notice  that  the  same  was  not  safe  for  public  travel, 
and  after  having  a  reasonable  opportunity  so  to  do,  the  said 

then  and  there  became  and  was  greatly  hurt, 

bruised,  wounded,  the  ligaments  of  the  right  shoulder  rup- 
tured, causing  this  claimant  to  become  sick,  sore,  lame,  and 
disordered ;  and  she  will  so  continue  for  a  long  space  of  time. 

And  also  because  of  said  negligence  the  said  

has  been  compelled  to  pay  and  has  incurred  an  indebtedness, 
and  will  be  obliged  to  pay  in  the  future  large  sums  of  mone.v 
to  defray  the  expense  in  the  employment  of  a  physician.  And 
also  because  of  the  negligence  aforesaid  on  the  part  of  the 

said  village  the  said   has  been  since  the   said 

day  of ,  19 ,  . ,  and  will  for  some  time  in 

the  future  be  unable  to  perform  her  duties  and  resume  her 
employment.     And  also,  by  reason  of  the  negligence  of  the 

village  as  above  said,  the  claimant, has  suffered, 

and  will  continue  to  suffer,  great  bodily  pain  and  anguish. 

And  your  claimant, ,  further  gives  notice  that,  as 

soon  as  she  is  able  to  ascertain  and  determine  the  extent  of  her 
injuries  by  reason  of  the  negligence  of  said  village  as  aforesaid, 
she  intends  to  file  with  said  village  council  an  itemized  state- 
ment of  her  claim  or  account  as  provided  by  said  section  2754 
of  the  Compiled  Laws  of  1897. 

Accoimt 

Village  of 

In  account  with Dr. 

For  damages  and  injuries  sustained  by  reason  of  the  neg- 
ligence of  the  village  as  fully  set  forth  in  the  notice  of  inten- 
tion to  hold  said  village  liable  for  damages  filed  with  the 

village  clerk  of  the  village  of ,  aforesaid,  on  the 

day  of ,  19 . . ,  as  follows : 

To  loss  of  time  from  the 

to  the   ,  being  

weeks  at  $ per  week $ 

To  board  during  said  time  at  $ 

per  week    $ 


PERSONAL   INJURIES  799 


To  doctor's  bill  and  expense  incurred 
therefor $ . 

To  nursing  and  care  during 

weeks  of  said  period  at  $ per 

week    $ . 

To  mental  anguish,  pain  and  suffering 
by  reason  of  the  negligence  of  said 
village   $. 

To  future  damages,  pain  and  suffering 
and  loss  of  time  by  reason  of  the 
negligence  of  said  village  as  aforesaid    $. 


Total    $. 


State  of  Michigan,   ^  gg 


county. 

,  the  above  named  claimant  of  the  village  of 

,  in  the  said  county,  being  duly  sworn,  deposes 

and  says  that  the  above  account  is  true  and  correct;  that  the 
sums  charged  for  the  damages  sustained  and  the  loss  incurred 
as  above  set  forth  are  reasonable  and  just ;  that  to  the  best 
of  her  knowledge  no  set-off  exists  nor  payment  made  on 
account  thereof;  and  that  there  is  now  due  from  said  village 
to  this  deponent  for  the  injuries  sustained  by  reason  of  the 

negligence  of  said  village  as  aforesaid,  the  sum  of 

dollars. 


Subscribed,  etc.''^^ 

1464  Municipality,  notice,  service 

The  service  of  the  notice  required  by  Illinois  statute  may  be 
had  upon  the  village  clerk  if  the  action  is  to  be  brought  against 
a  village,  by  filing  the  same  in  his  office,  where  the  village  has 
no  regular  licensed  village  attorney  who  maintains  an  office  or 
place  of  business.'^^  The  particular  mode  of  service  of  written 
notice  or  a  statement  of  the  injury  required  to  be  made  by  stat- 
ute is  not  binding  upon  the  injured  party,  unless  it  clearly  ap- 
pears that  there  was  a  licensed  attorney  duly  appointed  for  the 
municipality  who  has  an  office  at  a  fixed  place,  that  the  person 
who  has  been  injured  by  the  negligence  of  the  municipality  may 
know  with  reasonable  certainty  with  whom  and  in  what  place  to 
file  the  notice.'^  1  Courts  do  not  take  judicial  notice  of  offices 
created  by  ordinance,  as  the  office  of  city  attorney."  ^ 

e9Hawley   v.    Saranac    (Village),  (Village),    247    HI.    522,    525,    526 

157      Mich.      70      (1909);      (2754),  (1910)  ;  Sec.  2,  Laws  1905,  p.  111. 

(2775),  C.  L.  1897.  72  Condon  v.  Chicago,  249  111.  602. 

70  and  71  Donaldson     v.     Dieterich 


800  ANNOTATED   FORMS   OF    PLEADING    AND   PRACTICE 

1465  Next  of  kin 

Parents,  as  next  of  kin,  have  a  cause  of  action  for  injuring  or 
killing  a  minor  child,  on  the  ground  that  they  are  entitled  to 
the  child's  services  until  the  child  reaches  majorityj^ 

1466  Principal  and  agent,  nonfeasance  and  misfeasance 

An  agent  is  not  always  liahlf  to  third  persons.  For  a  mere 
nonfeasance  or  nonperformance  of  a  duty,  the  agent  is  liable 
solely  to  his  principal.  F'or  misfeasance  or  the  improper  per- 
formance of  a  duty,  the  agent  is  liable  to  tiiird  persons  injured 
by  such  negligence.''* 

1467  Public  officials,  agents  and  contractors 

The  public  oflicors  and  agents  are  liable  for  their  owti  per- 
sonal negligence  in  the  discharge  of  their  duties,  but  they  are 
exempt  from  liability  for  acts  or  defaults  of  inferior  officials  in 
the  public  service,  whether  appointed  by  them  or  not.  A  con- 
tractor with  the  government  for  the  transportation  of  the  mails 
is  not  engaged  in  a  public  service  within  the  meaning  of  the 
foregoing  rule  and  is  liable  to  a  mail  clerk  for  an  injury  sus- 
tained by  him  in  a  collision  caused  by  the  contractor's  sen-ant's 
negligence.'''^ 

1468  Railroad  companies,  unusual  dangers,  free  pass 

A  common  carrier  of  passengers  is  bound  to  exercise  greater 
precaution  toward  a  passenger  who  is  in  a  dangerous  position 
by  its  consent  than  it  has  in  a  case  of  a  passenger  who  is  not  in 
that  condition ;  and  a  passenger  who  is  in  an  unusually  danger- 
ous position  when  traveling  is  required  to  use  a  greater  degree  of 
care  for  his  own  safety  than  he  would  otherwise  be  required  to 
exercise."'^  A  free  ticket  or  pass  which  contains  the  usual  con- 
ditions exempts  the  railroad  company  from  liability  for  an  injury 
to  the  person  who  travels  upon  the  pass,  except  where  the  rail- 
road company  is  guilty  of  gross  or  wilful  negligence  in  operat- 
ing its  railroad  trains.'''' 

73  Chicago  &  G.  T.  Ry.  Co.  v.  Gaei-  "  Math  v.  Chicago  City  By.  Co., 
nowski,  155  111.  185,  191   (1895).  243  Tli.  114,  120,  121  (1909). 

74  Consolidated  Gas  Co.  v.  Connor,  77  Toledo.  Wabash  &  Western  Ry. 
114  Md.  140,  156   (1910).  Co.  v.  Beggs,  85  111.  80,  84  (1877). 

75  Barker  v.  Chicago,  P.  &  St.  L. 
By.  Co.,  243  111.  482,  486  (1910). 


PERSONAL   INJURIES  801 

1469  Trespassers  and  licensees 

A  railroad  company  owes  a  trespasser  upon  its  right  of  way 
or  a  licensee  no  duty  other  than  that  to  abstain  from  wantonly 
and  recklessly  injuring  him,  and  is  bound  to  use  only  reasonable 
care  to  avoid  injuring  him  after  he  is  discovered  to  be  in  a 
perilous  situation."^  So,  the  owner  of  land  and  buildings  as- 
sumes no  duty  to  one  who  is  on  his  premises  by  permission 
alone  as  a  mere  licensee,  whether  under  license  from  the  owner 
or  by  law,  except  that  the  owner  shall  refrain  from  wilful  or 
affirmative  injurious  acts."** 

JURISDICTION 

1470  Injury  and  death  in  another  state 

No  action  can  be  maintained  in  Illinois  for  a  wrongful  act 
and  death  which  have  taken  place  in  another  state,  whether  the 
action  be  based  upon  the  foreign  or  Illinois  statute.^*^ 

DECLARATION 

1471  Joinder  of  causes  of  action,  damages 

By  special  statutory  provision  in  Illinois,  counts  in  trespass 
and  counts  in  case  may  be  joined  in  the  same  declaration  or 
action.*^  Injuries  to  the  person  and  damages  to  his  property 
may  be  joined  in  a  single  count,  where  the  injuries  and  the 
damages  result  in  the  same  manner  and  from  the  same  negli- 
gent or  unlawful  act  of  the  defendant,  where  they  are  coincident 
in  time,  and  where  the  causes  of  action  accrue  to  the  plaintiff 
in  the  sajrie  right  and  against  the  defendant  in  the  same  char- 
acter or  capacity .^2  j^  count  based  upon  the  Survival  act  and 
a  count  under  the  Death  act  may  be  joined  in  Michigan  in  one 
action  because  the  right  of  action  in  both  cases  is  vested  in  the 
personal  representative  of  the  estate  and  the  remedy  is  of  a 
nature  requiring  such  joinder  of  counts.^^    in  actions  ex  delicto 

78Bartlett  v.  Wabash  R.  Co.,  220  (Hurd's  Stat.   1911,  p.  1290);   Sec. 

111.   163,   165    (1906);    Thompson  v.  1,  art.  4,  Federal  constitution;  Par. 

Cleveland,  Cincinnati  &  St.  Louis  Ry.  1,  sec.  2,  art.  4,  Federal  constitution. 

Co.,     226     111.     542,     545      (1907);  si  Krug  v.  Ward,  77  111.  603,  605 

Blanchard   v.    Lake  Shore   &    M.    S.  (1875);    Barker  v.   Koozier,   80  111. 

Ey.  Co.,  126  ni.  416,  424  (1888).  205,  206    (1875). 

79  Gibson  v.  Leonard.  143  111.  182,  82  Chicago  West  Division  Ry.  Co. 
189  (1892)  ;  Casey  V.  Adams,  234  111.  v.  Ingraham,  131  111.  659,  665 
350,  355,  356   (1908).  (1890). 

80  Dougherty     v.     American     Mc-  83  Carbary  v.  Detroit  United  Ey., 
Kenna  Process  Co.,  255  111.  369,  370  157  Mich.  683,  684  (1909). 
(1912);      Sec.      2,      Injuries      act 


802  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

there  may  be  a  recovery  against  a  single  defendant  under  a 
declaration   which   charges   joint   negligence   against   several.** 

1472  Venue,  demurrer 

In  an  action  against  a  railroad  company  for  personal  injuries, 
the  declaration  should  aver  that  the  railroad  owned  by  de- 
fendant and  used  by  it  was  used  in  the  county  and  state  in 
which  the  action  is  brought ;  the  failure  to  so  aver,  however,  can  be 
taken  advantage  of  only  by  demurrer.^^ 

1473  Character  of  defendant 

An  averment  that  the  village  of  (naming  it)  a  municipal  cor- 
poration of  the  state  of  (naming  it)  is  sufficient  to  show  the 
corporate   existence   and   character   of  the   defendant*^ 

1474  General  requisites 

Three  elements  are  essential  to  the  statement  of  a  good  cause 
of  action  for  negligence,  namely:  the  existence  of  a  duty  on 
the  part  of  the  person  who  is  charged  to  protect  the  com- 
plaining party  from  the  injury  that  was  received;  a  failure  to 
perform  that  duty;  and  an  injury  which  has  resulted  from  its 
nonperformance.  The  absence  of  any  one  of  these  elements 
renders  the  pleading  bad.*'  In  an  action  for  personal  injuries 
against  more  than  one  defendant,  the  statement  of  a  cause  of 
action  must  be  complete,  in  itself,  against  each  one  of  the  de- 
fendants without  the  aid  of  allegations  against  the  other.** 

1475  Duty,  averment 

Duties  may  be  general  and  owing  to  everybody,  or  particular 
and  owing  to  a  single  individual,  by  reason  of  his  peculiar 
position.    A  general  duty  becomes  personal  and  particular  when 

84  Linqiiist  v.  Hodges,  248  111.  491,  263  (1907) ;  Greinke  v.  Chicago  City 
495  (1911).  Ry.    Co.,   234   111.   564,   567    (1904); 

85  Chicago  &  Rock  Island  R.  Co.  Hackett  v.  Chicago  City  Ry.  Co.,  235 
V.  Morris,  26  111.  400,  402  (1861).  111.  116,  132  (1908);  East  St.  Louis 

88  Clark    V.    North    Muskegon,    88  Connecting  Ry.   Co.   v.   Meeker,   229 

Mich.  308,  309   (1891).  111.   98,   106    (1907);   McAndrews  v. 

sTDevaney   v.    Otis    Elevator    Co.,  Chicago,  Lake  Shore  &  E.  Ry.  Co., 

251    111.    28,    33    (1911);    Bahr-  v.  222  111.232,236(1906). 

National   Safe  Deposit  Co.,  234  111.  ss  Klawiter  v.  Jones,  219  111.  626, 

101,    103     (1908);     Chicago    Union  629   (1906). 
Traction  Co.  v.  Giese,  229  111.  260, 


PERSONAL  INJURIES  803 

some  person  is  placed  in  a  position  giving  him  special  occasion 
to  insist  upon  its  performance.^^  The  declaration  must  state 
facts  from  which  the  law  will  raise  a  duty,  and  it  is  not  suf- 
ficient to  allege  that  it  is  the  duty  of  the  defendant  to  do  cer- 
tain things,  as  that  would  be  but  the  averment  of  a  conclusion.^ <^ 
A  duty  will  not  be  implied  from  the  mere  characterization  of  an 
act  as  negligent  and  reckless.^i  If  the  declaration  fails  to  state 
facts  from  which  the  law  raises  a  duty  owing  from  the  defend- 
ant, it  will  be  insufficient  to  support  a  judgment.^2  ^  single 
count  of  the  declaration  may  charge  several  distinct  breaches  of 
duty,  and  proof  of  any  one  of  them  will  entitle  the  plaintiff 
to  a  recovery.^ 3 

1476  Negligence;  averment,  proximate  cause 

A  declaration  for  personal  injuries  must  state  the  specific 
act  or  omission  relied  upon  as  constituting  a  breach  of  duty 
in  order  that  a  cause  of  action  may  appear  therefrom.^ ^  The 
pleader  is  not  required  to  set  out  the  particular  facts  constitut- 
ing the  negligence  complained  of  when  they  are  not  within  his 
knowledge ;  and  where  the  act  is  of  a  simple  character,  an  alle- 
gation of  absence  of  care  in  its  performance  is  sufficient  without 
particularly  specifying  the  circumstances.""*  The  declaration 
must  also  establish  the  natural  connection  between  the  alleged 
wrongful  act  and  the  injury  and  that  such  negligence  contrib- 
uted in  some  degree  to  plaintiff's  injury."'^  It  is  not  necessary 
to  specifically  allege  that  a  defendant  was  negligent  and  that 
his  negligence  was  the  result  of  an  injury  if  facts  are  stated  in 
the  declaration  from  which  the  law  raises  a  duty  and  which  show 
an  omission  of  the  duty  on  the  defendant's  part  which  resulted 
in  the  injury  in  question.®^     An  allegation  that  the  defendant 

89  Chicago  Union  Traction  Co.  v.  o*  Klawiter  v.  Jones,  219  111.  626, 
r.iese,  229  111.  260,  263  (1907).  630     (1906);     Barnes    v.     Danville 

90  McAndrews  v.  Chicago,  Lake  Street  Rv.  &  L.  Co.,  235  111.  566, 
Shore  &  E.  Ry.  Co.,  222  111.  237;  573  (1908);  Thompson  v.  Cleveland, 
Chicasfo  &  Alton  R.  Co.  v.  Clausen,  Cincinnati,  Chicago  &  St.  L.  Ry.  Co., 
173   ill.   100,   105    (1898);   Avers  v.  226  111.  542  (1907). 

Chicago,   111   111.   406,  412    (1884);  os  Chicago    City    Ry.    Co.    v.   Jen- 
Sargent  Co.  V.  Baublis,  215  111.  428,  nings.  157  111.  274,  280  (1895). 
431  (1905).  98  Keeshan    v.    Elgin,    Aurora    & 

91  McAndrews  v.  Chicago,  Lake  Southern  Traction  Co.,  229  111.  533, 
Shore  &  E.  Ry.  Co.,  222  111.  232,  536  (1907);  McGanahan  v.  East  St. 
239   (1906).  Louis  &  Carondelet  Ry.  Co.,  72  111. 

92  Langan  v.  Enos  Fire  Escape  Co.,  557,  558  (1874). 

233  111.  308.  311,  312  (1908).  97  Nail  v.  Taylor,  247  111.  580,  586 

93  Postal    Telegraph-Cable    Co.    v.       (1910)., 
Likes,  225  111.  249,  258  (1907). 


804  ANNOTATED   FORMS  OF   PLiLVDlNG   AND   PRACTICE 

was  guilty  of  negligence  in  failing  to  perform  a  specified  duty 
sufficiently  avers  the  ultimate  fact  of  negligence.»8  In  West 
Virginia  the  acts  of  omission  or  commission  constituting  the 
negligence  or  wrong  need  not  be  stated  particularly .»» 

A  plaintiff  cannot  recover  for  negligent  acts  w^hich  are  not 
averred  in  the  declaration,  even  if  such  acts  caused  the  injury ; 
as  he  must  recover,  if  at  all,  upon  the  cause  stated  in  his  decla- 
ration, ^oo  A  declaration  which  defectively  states  negligence  is 
cured  after  verdict.^  ^^ 

1477  Negligence;  ordinance  or  statute,  pleading 

A  declaration  which  sets  up  a  violation  of  a  statute  or  ordi- 
nance is  good,  and  the  advantage  of  pleading  the  statute  or  ordi- 
nance is  that  proof  of  its  violation  establishes  prima  facie  acts 
of  negligence.i"2  The  violation  of  municipal  ordinance  by  the 
defendant  must  be  specially  pleaded.  1*^^ 

1478  Negligence;  receivers 

In  an  action  against  a  receiver  of  a  corporation  for  personal 
injuries,  the  declaration  must  allege  that  the  receiver  had  pos- 
session or  control  of  the  property  causing  the  injury,  and  it 
must  charge  him  with  negligence.^''* 

1479  Negligence ;  wanton  and  wilful,  practice 

In  personal  injury  cases  a  plaintiff  should  always  include  in 
the  declaration  a  count  charging  wanton  and  wilful  negligence 
if  there  is  any  evidence  to  sustain  it.^^^ 

1480  Negligence;  proof,  presumption      ' 

A  plaintiff  may  prove  a  part  of  a  divisible  charge  of  negli- 
gence; ^''^  and  he  is  not  bound  to  prove  an  allegation  of  concur- 
as  Chicago   &   Eastern  Illinois   K.      Stoltenberg,   211   111.  531,   537,   538 
Co.    V.    Kimmel,    221    111.    547,    551       (1904).  .    ,       o, 

Q9Qg\  103  Blanchard    v.    Lake    Shore    & 

89  Hawker  v  Baltimore  &  Ohio  R.  Michigan  Southern  Ey.  Co.,  126  111. 
Co.,  15  W.  Va.  628,  635  (1879).  416,  425   (1888). 

100  Crane  Co.  v.  Hogan,  228  111.  lo*  Henning  v.  Sampsell,  236  111. 
338,  344   (1907);  Lyons  v,  Ryerson      375,  379,  380  (1908) 

&  Son   ^42  111.  409,  415  (1909).  los  Belt  Ry.  Co.  v.  Skszypczak,  225 

101  Illinois    Terra    Cotta    Lumber  111.  242  (1907)  ;  Thompson  v.  Qeve- 
Co     V     Hanley     "14    lU-    243,    245  land,   Cincinnati,   Chicago    &   St.    L. 
(1905)  ;  Sargent  Co.  v.  Baublis,  215  Ey.  Co.,  226  111.  542,  544  (1907). 
Ill    43''-  Barker  v.  Koozier,  80  111.  loe  Guianios  v.  De  Camp  Coal  Min- 
206,  207  (1875).  i"g  Co.,  242  111.  278,  281   (1909). 

102  United   States  Brewing  Co.  v. 


PERSONAL    INJURIES  805 

rent  negligence  of  two  or  more  defendants,  but  he  may  prove 
negligence  sufficient  to  produce  the  injury  of  either  of  the  de- 
fendants. ^"^^  A  charge  of  wilful  and  wanton  negligence  is  suffi- 
ciently proved  to  sustain  a  judgment  without  proving  the  wil- 
fulness or  wantonness  of  the  negligence,  on  the  principle  that  in 
actions  of  tort  a  plaintiff  may  prove  a  part  of  a  divisible  charge 
of  negligence,  and  the  charge  of  wilful  negligence  is  divisible.^^^ 
In  some  cases  and  under  some  circumstances,  negligence  may 
be  inferred  from  proven  or  admitted  facts. ^'^'^ 

1481  Notice  or  knowledge;  averment,  proof 

In  personal  injuries,  the  declaration  must  allege  knowledge 
or  facts  from  which  it  necessarily  appears  that  the  employer 
knew  or  had  notice  of  a  defect  or  a  neglect  of  duty,  unless  the 
duty  or  act  is  of  such  a  nature  that  an  allegation  of  its  nonper- 
formance or  performance  necessarily  involves  notice  and  knowl- 
edge: But  the  failure  to  aver  notice  or  knowledge  is  cured  by 
verdict-i^*^  An  averment  and  proof  of  actual  notice  of  the  de- 
fective construction  and  condition  of  an  appliance  are  riot  nec- 
essary in  a  declaration  against  the  maker  of  the  instrument.^ 

1482  Due  care ;  averment;  unavoidable,  test 

A  declaration  charging  common  law  negligence  must  aver 
due  care  on  the  part  of  the  plaintiff  when  he  was  injured,  or 
it*  must  contain  an  averment  in  regard  to  his  conduct  or  the 
circumstances  surrounding  him  from  which  due  care  on  his 
part  may  be  reasonably  inferred.^^^  if  such  allegations  are 
omitted,  the  declaration  does  not  state  a  cause  of  action  and 
after  the  period  of  limitations  fixed  by  statute  has  elapsed  can- 
not be  amended  to  state  a  cause  of  action  w^hich  would  not  be  sub- 
ject to  the  bar  of  the  statute.ii^  But  too  general  an  averment 
of  due  care  is  cured  by  verdict."^    in  West  Virginia,  however, 

107  Pierson  v.  Lyon  &  Healy,  243  "2  Walters  v.  Ottawa,  240  111.  266, 

111.  370,  375,  376   (1910).  267  (1909);  Bradley  v.  Chicago  Vir- 

losGuianios  v.   De   Camp    Mining  den    Coal    Co.,     231    111.    622,    627 

Co.,  ^itpra.  (1908)  ;  Blanchard  v.  Lake  Shore  & 

109  Linquist  v.  Hodges,  248  111.  Michigan  Southern  Ry.  Co.,  126  111. 
•i91,  500   (1911).  425;  St.  Louis,  Alton  &  Terre  Haute 

110  Sargent  Co.  v.  Baublis,  215  111.  R.  Co.  v.  Holman,  155  111.  21,  24 
433;    Postal  Telegraph-Cable  Co.  v.  (1895). 

Likes,     225     111.     263;     Linquist    v.  us  Walters  v.   Ottawa,  supra. 

Hodges,  248  111.  498.  ii4  Brunhild     v.     Chicago     Union 

Hi  Linquist    v.    Hodges,    248    111.  Traction     Co.,     239     111.     621,     623 

497.  (1909). 


b06  ANX^OTATED   FORMS    OF    I'LEADING    AND    PKACTICE 

it  is  not  necessary  for  the  plaintiff  to  allege  in  his  declaration 
that  he  was  using  ordinary  care  and  was  not  guilty  of  negligence 
which  contributed  to  the  injury,  such  matters  boin?  defenses 
at  common  law.i^^  In  alleging  the  grievance  couiplained  of,  the 
word  "unavoidable"  means  the  exercise  of  ordinary  or  due  care 
on  the  part  of  the  plaintiff;  it  does  not  mean  the  exercise  of 
the  highest  degree  of  care.^^«  Due  care  depends  upon  the  cir- 
cumstances surrounding  the  occasion  and  is  to  be  determined 
with  reference  to  the  situation  in  which  a  person  finds  himself 
at  the  time  of  the  injury.^i^ 

1483  Due  care,  injury  to  child 

In  an  action  for  personal  injuries  to  a  child  it  is  necessary 
to  allege  that  the  parents  of  the  child  were  in  the  exercise  of 
reasonable  care  for  the  child's  safety,  but  the  failure  to  so  allege 
may  be  cured  by  verdict  if  it  can  be  clearly  inferred  from  the 
allegations  of  the  declaration  that  the  accident  was  not  due  to 
the  parent's  negligence  and  when  the  general  issue  was 
pleaded."® 

1484  Due  care,  proof 

Under  an  allegation  that  the  plaintiff  was  in  the  exercise  of 
due  care  for  his  own  safety,  proof  of  all  the  circumstances  tend- 
ing to  support  the  allegation  is  admissible,  including?  proof  that 
the  plaintiff  was  ordered  or  directed  to  do  the  work  in  the  place 
or  in  the  manner  it  was  performed.*  *»  Ordinary  care  may  be 
established  by  circumstantial  evidence.i^o 

1485  Custom,  proof 

It  is  not  necessary  to  aver  the  existence  of  a  custom  regulat- 
ing the  occupation  in  which  an  injury  occurs  to  permit  evidence 
of  the  custom,  if  it  bears  directly  upon  the  questions  of  contrib- 
utary  negligence  and  fellow-servant.^^i 

iisSheff    V.    Huntington    (City),  ns  Illinois  Central  R.  Co.  v.  War- 

16   W.   Va.    307,    313,    314    (1880);  riner,  229  111.  91,  97  (1907). 
Berns  v.  Gaston  Gas  Coal  Co.,  27  W.  us  Henrietta    Coal    Co.    v.    Camp- 

Va.  285,  290  (1885).  bell,  211  111.  216,  227  (1904). 

116  Chicago  &  Alton  R.  Co.  v.  Har-  120  StoUery  v.  Cicero  &  Proviso 
rington.  192  111.  9,  27  (1901).  Street  Ry.  Co     243  111.  293    294 

117  Illinois  Central  R.  Co.  v.  Siler,  121  Sturm  v.  Consolidated  Coal  Co., 
229  111.  390,  394  (1907).  248  111.  28. 


PERSONAL   INJURIES  807 

1486  Fellow-servant,  proof 

In  stating  negligent  acts  of  defendant's  servants,  it  must  be 
averred  that  the  injury  to  the  plaintiff  was  caused  by  the  de- 
fendant's servants  who  were  not  fellow-servants  of  the  plain- 
tiff; as  an  omission  to  so  aver  is  not  cured  by  verdict.^-^  But 
an  omission  to  negative  the  relation  of  fellow-servant  is  cured 
after  verdict,  if  the  facts  alleged  fully  show  the  relation  of  the 
parties  and  the  issue  joined  necessarily  requires  proof  of  these 
facts. ^23  j^  allegation  that  a  certain  person  was  the  foreman 
in  charge  of  the  work  and  as  a  superior  servant  and  vice-princi- 
pal of  the  defendant  negligently  gave  a  certain  order  sufficiently 
charges  fellow-servantship.^-^  A  foreman  of  a  shop  is  not  nec- 
essarily a  vice-principal,  and  the  fact  that  he  was  acting  as  such 
must  be  shown.  ^25 

Negativing  fellow-servantship  is  essential  only  when  the  injury 
is  caused  by  persons  who  might  have  been  fellow-servants  of  the 
person  who  was  injured.  When  the  cause  of  the  injury  is  the 
negligence  of  the  employer  himself,  or,  if  a  corporation,  that  of 
its  agents  or  servants  who  acted  for  it,  the  allegation  concerning 
fellow-servant  is  not  an  essential  element  of  the  cause  of  action ; 
especially,  when  it  appears  from  the  averments  of  the  declaration 
that  the  person  who  was  injured  had  no  connection  or  associa- 
tion with  the  agents  or  servants  of  the  defendant  through  whose 
negligence  the  injury  was  occasioned.^^e 

1487  Assumed  risk,  instructions 

The  assumption  of  risk  may  be  negatived  by  proper  averments 
in  the  declaration.127  ijj  gj^  action  for  personal  injuries  sus- 
tained by  continuing  in  the  service  after  notice  of  a  dangerous 
condition  in  the  employment  and  a  promise  to  repair,  the  decla- 
ration should  aver  that  the  danger  was  not  so  imminent  that  the 
plaintiff  should  have  quit  the  services  rather  than  incurred  the 
risk,  and  that  he  did  not  remain  in  the  employment  for  an  un- 
reasonable time  after  the  promise  to  repair,  if  it  is  intended  to 
ask  a  peremptory  instruction  to  find  for  the  plaintiff  as  charged 

122  Joliet  Steel  Co.  v.  Shields,  134  125  Burgess  v.  Humphrey  Book- 
Ill.  209,  214  (1890);  Schillinger  case  Co.,  156  Mich.  345,  349  (1909), 
Bros.  Co.  V.  Smith,  225  111.  81.  120  Mclnemey    v.    Western    Paek- 

123  Bennett  v.  Chicago  City  Ky.  ing  &  Provision  Co.,  249  111.  240, 
Co.,  243  111.  420,  434   (1910).  243    (1911). 

124  Malloy  V,  Kelly- Atkinson  Con-  127  Kirk  &  Co.  v.  Jajko,  224  IlL 
struction     Co.,     240     111.     102,     104  338,  343  (1906). 

(1909). 


808  ANNOTATED    FORMS   OF    FLEIADING    AND    PRACTICE 

in  the  declaration.^ ^s  ^^  averment  that  the  plaintiff  did  not 
know,  nor  had  an  opportunity  of  knowing  of  the  dangerous 
condition  which  caused  the  injury  negatives  his  assumption  of 
risk  when  supported  by  the  evidence  and  authorizes  an  instruc- 
tion in  his  behalf  leaving  out  the  element  of  assumed  risk. ^20 

1488  Injury,  place 

Describing  the  place  of  injury  as  "near"  a  certain  street  is 
sufficient  on  general  demurrer.  ^2*^ 

1489  Notice  to  municipality 

In  an  action  against  a  municipality  for  personal  injuries,  an 
Illinois  declaration  must  aver  the  giving  of  notice  within  six 
months  from  the  date  of  the  injury,  or  when  the  cause  of  action 
accrued,  regardless  of  when  the  action  be  brought. ^^^  This 
averment  is  a  condition  precedent  to  the  bringing  of  the  action.^^^ 
In  Michigan,  the  declaration  against  a  municipality  for  personal 
injuries  must  aver  the  previous  presentation  of  the  claim  to  the 
common  council.  ^^^ 

1490  Survivorship;  averment,  practice 

If  an  action  is  based  upon  the  Death  act  the  declaration  must 
aver  the  wrongful  act,  neglect  or  default  of  the  defendant  caus- 
ing the  death  of  the  intestate  under  such  circumstances  as  would 
entitle  him  to  maintain  an  action  if  death  had  not  ensued,  the 
fact  of  surA'ivorship,  and  the  names  of  the  widow  or  next  of 
kin.134  ^j2  averment  of  survivorship  is  an  essential  allegation 
of  the  cause  of  action  and  must  be  averred  in  the  declaration. ^^5 
Naming  one  kind  of  next  of  kin  will  preclude  a  recovery  in  be- 
half of  another,  as  the  naming  of  certain  persons  as  survivors  is 
exclusive  of  others  not  mentioned.^  ^e  ^phe  naming  of  parents  and 
sisters,  without  stating  them  to  be  the  next  of  kin  to  the  deceased, 
merely  states  a  cause  of  action  defectively.^  ^^     The  failure  to 

128  Cromer  v.  Borders  Coal  Co.,  246  133  Springer  v.  Detroit,  102  Mich. 
111.  451,  456  (1910)  ;  Seott  v.  Parlin       300  (1894). 

&  Orendorff  Co.,  245  111.  460,  468,  i34  Quincy  Coal  Co.  v.  Hood,  77  111. 

469   (1910).  68,  72  (1875). 

129  Hagen  v.  Schleuter,  236  111.  i35  Lake  Shore  &  Michigan  Soiith- 
467,  474   (1908).  ern  Ey.  Co.  v.  Hessions,  150  111.  556, 

130  Karczenska  v.  Chicago,  239  111.  557 ;  Chicago  &  Rock  Island  R.  Co.  v. 
483,  484,  485  (1909).  Morris,  26  111.  400,  402   (1861). 

131  Erford  v.  Peoria,  229  111.  546,  i36  Quincy  Coal  Co.  v.  Hood,  77  111. 
553   (1907).  74. 

132  Walters  v.  Ottawa,  240  111.  262,  i37  BjTne  v.  Marshall  Field  &  Co., 
263.  237  lU.  384,  388  (1908). 


PERSONAL    INJURIES  809 

correctly  give  the  Christian  names  of  some  of  the  next  of  kin 
will  not  change  or  bar  the  cause  of  action,  and  may  be  supplied 
by  amendment.  138  ^jj  averment  of  survivorship  and  profert  of 
letters  of  administration  at  the  end  of  the  last  count  immediately 
preceding  the  conclusion  is  good  form  in  a  declaration  which 
contains  several  counts. ^^ 9 


1491  Survivorship,  proof 

In  an  action  for  personal  injuries  resulting  in  death,  it  is 
permissible  to  prove  that  the  wife  or  next  of  kin  were,  at  and 
before  the  time  of  the  injury  and  the  decease,  dependent  for  sup- 
port upon  the  deceased,  or  that  he  was  her  or  their  sole  sup- 
port.i^*^  But  such  evidence  is  not  permissible  when  an  injured 
person  sues  for  damages  in  his  own  name.^^^ 

1492  Ad  damnum 

In  actions  based  upon  the  Death  act,  the  ad  damnum  must  not 
claim  more  damages  than  the  statute  allows,  if  the  statute  limits 
recovery  to  a  specific  amount.^^^ 

1493  Amendment,  next  of  kin 

In  personal  injury  cases  an  amendment  of  the  declaration 
which  corrects  the  Christian  name  of  some  of  the  next  of  kin 
does  not  amount  to  and  does  not  constitute  a  new  cause  of  action 
upon  which  a  plea  of  the  statute  of  limitations  can  be  based. ^^^ 
After  the  death  of  a  plaintiff  in  a  personal  injury  case,  the  decla- 
ration cannot  be  amended  to  permit  proof  of  damages  under  the 
Act  of  1905,  because  such  an  amendment  amounts  to  the  intro- 
duction of  a  new  cause  of  action.i*^ 


138  Grace   &  Hyde  Co.   v.  Strong,  1*2  Hughes  v.  Eichter,  161  111.  409 
224  111.  630,  634  (1907).  (1896). 

139  Lake  Shore  &  Michigan  South-  1*3  Grace  &  Hyde  Co.   v.   Strong, 
ern  Ey.  Co.  v.  Hessions,  150  111.  577.  supra. 

140  Kulvie  V.  Bunsen  Coal  Co.,  253  144  Fournier  v.  Detroit  United  Ey., 
111.  386,  392   (1912).  157  Mich.  589   (1909);  Act  No.  89, 

141  Jones  &  Adams  Co.  v.  George,  Public  Acts  1905. 
227    111.    64,    70    (1907);    Kulvie  v. 

Bunseu  Coal  Co.,  253  111.  393. 


810  ANNOTATED   FORMS  OF   PLEADING   AND  PRACTICE 

1494  Words  and  phrases,  "necessary" 

The  word  "necessary"  used  in  a  declaration  for  personal  in- 
juries does  not  mean  indispensable  or  unavoidable,  but  may  mean 
expedient  or  reasonably  convenient. ^^^ 

SPECIAL  CAUSES  AND  DECLARATIONS 

1495  Air  shaft,  Narr.  (111.) 

i^«For  that  the  defendant,  in  the  lifetime  of  the  said  B, 

to  wit,  on  or  about  the day  of ,  19 .  , ,  was 

possessed  of,  controlled  and  managed  a  certain  building  and 
appurtenances   thereto   belonging,   commonly   known   as   and 

called  the   ,  in  the  city  of   ,  in  the 

county  aforesaid,  in  which  said  building  there  now  is,  and 
before  and  on  the  day  aforesaid  there  was,  a  certain  shaft, 
pit  or  areaway,  which  said  building  was  then  and  there  used 
for  offices,  and  for  the  purpose  of  renting  offices,  suites  and 
stores  therein  to  tenants  for  hire;  that  it  was  then  and  there 
the  duty  of  the  defendant  to  have  the  said  building  and  the 
appurtenances  thereto  properly  and  safely  constructed,  and 
to  keep  said  shaft,  pit,  or  areaway  properly  and  sufficiently 
guarded,  obstructed  and  protected,  and  to  so  manage  said 
building  and  the  appurtenances,  as  not  to  expose  persons  in 
the  lawful  and  necessary  use  of  said  building  and  appurten- 
ances, and  rightfully  upon  said  premises,  to  unnecessary  peril, 
danger  and  harm. 

Yet,  the  defendant,  not  regarding  its  duty  in  that  behalf,  and 
well  knowing  the  premises,  and  while  it  was  possessed  of, 
occupying  and  managing  said  building  and  the  appurtenances 
thereto,  and  while  there  was  such  shaft,  pit,  or  areaway  as 
aforesaid,  to  wit,  on  the  day  aforesaid,  then  and  there  wrong- 
fully, negligently  and  wantonly  permitted  said  shaft,  pit,  or 
areaway  to  be  and  remain  so  badly,  insufficiently  and  defec- 
tively closed,  guarded,  obstructed  and  protected,  that  by 
means  thereof,  and  for  want  of  proper  and  sufficient  closing, 
guarding,  obstructing  and  protecting  of  the  said  shaft,  pit, 
or  areaway,  and  while  the  said  B,  on  the  day  aforesaid,  was 
rightfully  in  the  said  building  of  the  defendant,  in  the  proper 
and  necessary  pursuit  of  his  lawful  business,  then  and  there 
necessarily  and  unavoidably  fell  into  and  down  the  said  shaft, 
pit,  or  areaway,  with  great  force  and  violence,  and  was  there- 
by, then  and  there,  killed. 

2.  That  it  was  also  then  and  there  the  duty  of  the  defendant 
to  keep  the  said  shaft,  pit,  or  areaway  safely  and  securely 

145  Brooks  V.  Chicago,  Wilmington  1*6  Add  caption  as  in  Section  211, 

&  Vermilion  Coal  Co.,  234  111.  372,      Note  60,   and   commencement. 
379  (1908). 


PERSONAL   INJURIES  811 

closed,  fastened,  secured  and  locked,  so  as  not  to  expose  per- 
sons rightfully  in  said  building  to  unnecessary  peril,  danger 
and  harm. 

Yet  the  defendant,  not  regarding  its  duty  in  that  behalf, 
and  well  knowing  the  premises,  and  while  it  was  the  owner  of 
and  controlling  and  managing  the  said  building  and  the 
appurtenances  thereto,  and  while  there  was  such  shaft,  pit, 
or  areaway,  to  wit,  on  the  day  aforesaid,  then  and  there  wrong- 
fully, negligently  and  wantonly  permitted  the  said  opening 
to  said  shaft  to  be  and  remain  unclosed,  unfastened,  unsecured 
and  unlocked ;  that  by  means  thereof,  and  while  the  said  B, 
on  the  day  aforesaid,  was  rightfully  in  said  building  of  the 
defendant  in  the  proper  and  necessary  pursuit  of  his  lawful 
business,  then  and  there  necessarily  and  unavoidably  fell  into 
and  down  the  said  shaft,  pit,  or  areaway,  with  great  force, 
and  was  thereby,  then  and  there,  killed. 

3.  That  it  was  also  then  and  there  the  duty  of  the  defendant 
to  have  and  keep  the  said  doors  closed  and  locked,  and  to 
remove  the  said  keys  therefrom,  so  that  said  doors  would  not 
be  and  become  open  and  unlocked,  and  thereby  expose  per- 
sons rightfully  in  said  building  to  unnecessary  peril,  danger 
and  harm. 

Yet  the  defendant,  not  regarding  its  duty  in  that  behalf, 
and  well  knowing  the  premises,  and  while  it  was  the  owner 
of  and  in  the  control  and  management  of  said  building  and 
the  appurtenances  thereto,  and  while  there  was  such  shaft,  pit, 
or  areaway,  with  doors  leading  thereto  having  locks  and 
keys,  to  wit,  on  the  day  aforesaid,  then  and  there,  wrongfully, 
negligently  and  wantonly  permitted  the  said  keys  to  remain 
and  be  in  the  said  locks  in  such  doors  of  said  shaft,  pit,  or 
areaway,  that  by  means  thereof  the  said  doors  to  said  shaft, 
pit,  or  areaway  became  and  were,  on  the  day  aforesaid, 
unclosed  and  unlocked;  and  that  by  means  thereof,  and  while 
the  said  B,  on  the  day  aforesaid,  was  rightfully  in  the  said 
building  of  the  defendant,  in  the  proper  and  necessary  pur- 
suit of  his  law^ful  business,  then  and  there,  necessarily  and 
unavoidably,  fell  into  and  down  the  said  shaft,  pit,  or  area- 
way,  and  was  thereby,  then  and  there,  killed.^'*^ 

And  said  B  left  him  surviving  one  K  B,  his  widow,  and  one 
B  B,  his  son,  and  one  A  B,  his  daughter,  and  one  J  B,  his 
son,  and  one  M  B,  his  daughter,  and  one  G  B,  his  daughter, 
his  next  of  kin,  who  are  still  living,  and  by  reason  of  the 
death  of  said  B  as  aforesaid  the  said  K  B  has  been  and  is 
deprived  of  her  means  of  support,  and  the  said  B  B,  A.  B,  J 
B,  M  B  and  G  B  have  been  and  are  deprived  of  their  means  of 
support  and   education;   to   the   damage   of  the  plaintiff,   as 

147  Bahr  v.  National  Safe  Deposit 
Co.,  234  111.  101  (1908). 


812  ANNOTATED   FORMS   OF    PLEADING    AND    I'UACTICE 

administratrix  as  aforesaid  of  dollars,  and 

therefore  she  brings  her  suit,  etc. 

And    the    plaintiff    brings   into    court    here    the    letters    of 
administration    to    her    granted    by    the    probate    court    of 

county,   which   give   sufficient   evidence   to   the 

court  hereof  of  the  grant  of  administration  of  the  said  estate  to 
the  plaintiff,  and  that  plaintiff  is  such  administratrix,  and  has 
the  administration  of  said  estate. 


Plaintiff's  attorney. 

1496  Appliances  or  instrumentalities;  declaration  requisites 

In  an  action  by  an  employee  against  an  employer  on  account 
of  a  defective  appliance,  the  declaration  must  aver  that  the 
appliance  was  defective,  that  the  employer  had  notice  or  knowl- 
edge thereof,  or  ought  to  have  had  notice  or  knowledge,  that 
the  employee  did  not  know  of  the  defect  and  had  not  equal 
means  of  knowledge  with  the  employer  and  that  the  employer 
knew  of  it,  that  the  circumstances  were  such  that  the  employee 
did  not  assume  the  risk,  and  that  the  defect  was  tlie  proximate 
cause  of  the  injury.^ ^^ 

1497  Attractive  machinery ;  action,  law  and  fact 

Persons  owning  or  operating  unguarded  machinery  or  other 
objects  of  a  dangerous  character  and  of  a  nature  and  at  a  place 
to  attract  young  children,  are  liable  for  injury  sustained  by 
them  and  caused  by  such  machinery;  the  attractive  nature  of 
the  machinery  is  a  question  of  fact  and  not  of  law.i-*^ 

The  doctrine  of  attractive  nuisance  is  applicable:  (1)  Where 
an  injury  results  from  some  dangerous  element  which  is  a  part 
of,  or  which  is  inseparably  connected  with  the  alluring  thing 
or  device ;  (2)  Where  the  injury  results  from  some  independent 
source,  not  such  as  will  break  the  relation  of  the  cause  and  effect, 
brought  directly  in  contact  with  the  alluring  device  or  thing.^^^ 

1498  Attractive  machinery;  coal  conveyor,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of ,  19 .  . , 

the  defendants  were  possessed  of  and  were  jointly  using  and 

i48Kepiiblic   Iron    &   Steel   Co.   v.  i49  Stollery    v.    Cicero    &    Proviso 

Lee,  227  111.  246,  257   (1907);  Chi-  Street  Ey.  Co.,  243  111.  292. 

cago    &   Eastern    Illinois    R.    Co.   v.  iso  Seymour  v.  Union  Stock  Yards 

Heerey,    203   111.   492    (1903);    Dia-  &    Transit    Co.,    224    111.    579,    585 

mond  Glue  Co.  v.  Wietzychowski,  227  (1906). 
111.  338,  342  (1907). 


PERSONAL  INJURIES  813 

operating  a  certain  powerhouse  known  as  the , 

which  said  powerhouse  was  situated  at  the  intersection  of 

avenue  and street,  in  the  county  of 

,  and  state  aforesaid,  and  that  in  and  about  the 

said  powerhouse  the  said  defendants  were  then  and  there 
possessed  of  and  using  and  operating  certain  machinery,  and 
that  said  machinery  was  then  and  there  used  by  the  said 
defendants  for  the  purpose  of  enabling  the  defendants  to 
generate  power  within  said  powerhouse,  and  that  said  power 
was  then  and  there  used  by  the  said  defendants  for  the  purpose 
of  propelling  street  cars  that  were  then  and  there  possessed 
and  owned  and  operated  by  the  said  defendants. 

And  the  plaintiffs  further  aver  that  a  part  of  the  machinery 
constituting  said  powerhouse,  and  used  in  and  about  the  said 
powerhouse,  was  a  certain  coal  conveyor,  that  said  coal  con- 
veyor then  and  there  consisted  of endless  chains, 

running    parallel    to    each    other    at    a    distance    of,    to    wit, 

feet  apart,  and  that  certain  coal  conveyors  were 

then  and  there  attached  at  right  angles  to  said  chains  so  as  to 
form  an  endless  apron  that  was  then  and  there  used  in  con- 
veying coal  into  and  within  said  powerhouse  of  said  defend- 
ants. 

And  the  plaintiffs  fui-ther  aver  that  said  powerhouse  was 

then  and  there  situated  at  a  distance  of,  to  wit, 

feet  south  of street,  and  that  said  coal  conveyor 

then  and  there  extended  through  said  powerhouse  from  north 
to  south,  and  that  on  the  north  side  of  said  powerhouse  there 
was  then  and  there  situated  certain  sprocket  wheels  upon  which 
said  conveyor  then  and  there  ran,  and  which  sprocket  wheels 
were  then  and  there  used  for  the  purpose  of  supporting  said 
conveyor  while  used  by  said  defendants,  and  that  the  north 
end  of  said  coal  conveyor,  and  the  sprocket  wheels  on  which 
said  conveyor  ran,  were  then  and  there  wholly  unguarded  and 
uncovered  and  beyond  and  outside  of  said  powerhouse,  and 
that  said  coal  conveyor  then  and  there  ran  within  a  distance 

of,  to  wit, foot  from  the  ground  on  said  north  side 

of'  said  powerhouse,  and  that  said  coal  conveyor  was  then 
and  there,  and  for  a  long  time  prior  thereto  had  been  operated 
by  the  said  defendants  at  irregular  intervals  as  the  said  de- 
fendants then  and  there  might  have  occasion  to  use  the  same 
for  the  purpose  of  conveying  coal. 

And   the   plaintiffs   further   aver   that   the   space   between 

street   and  the   north  side   of   said   powerhouse 

was  then  and  there  an  unenclosed  and  vacant  lot. 

And  the  plaintiffs  further  aver  that  the  said  coal  conveyor 
then  and  there  immediately  adjoining  and  connecting  with 
the  north  side  of  said  powerhouse  of  the  said  defendants,  was 


814  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

then  and  there,  and  for  a  long  time  prior  thereto  had  been 
attractive  to  children  of  tender  years,  and  then  and  there 
tended  to  and  did  incite  the  childish  curiosity  of  infants  of 

tender  years,  and  that  on  the  said  ....  day  of ,  19.  ., 

and  for  a  long  time  prior  thereto,  a  large  number  of  infants 
of  tender  years  were  in  the  habit  of,  and  did  play  in  the  said 
vacant  lot,  and  in,  on  and  about  the  said  coal  conveyor  of  the 
said  defendants,  so  situated  and  adjoining  the  north  end 
of  the  said  powerhouse.  All  of  which  facts  were  then  and 
there  well  known  to  the  said  defendants,  or  could  by  the  exer- 
cise of  reasonable  care  on  their  part  have  been  discovered. 

And  the  plaintiffs  aver  that  it  then  and  there  became  and 
was  the  duty  of  the  said  defendants  to  exercise  ordinary  care 
in  and  about  the  management  of  their  said  powerhouse,  and 
the  machinery  in  and  about  the  same,  and  the  said  coal  con- 
veyor, to  the  end  that  children  playing  on  and  about  the 
said  machinery  and  coal  conveyor,  and  near  the  said  power- 
house, and  attracted  by  the  said  machinery  and  said  coal 
conveyor,  would  not  be  injured. 

And  the  plaintiffs  aver  that  on  the  day  and  year  afore- 
said the  plaintiffs'  deceased  was  then  and  there  a  child  of 

tender  years,  of,  to  wit,  the  age  of years,  and 

in  the  care  and  custody  of his  mother,  and  that 

said  mother  was  at  and  before  the  time  of  the  accident  in 
the  exercise  of  ordinary  care  for  the  safety  of  said  deceased, 
and  that  said  deceased  then  and  there  resided  a  short  distance, 

to  wit,  block  from  said  powerhouse,  and  that  the 

plaintiff's  deceased  was  on  the  day  and  year  aforesaid  at- 
tracted by  childish  curiosity  towards  the  said  powerhouse 
and  the  said  coal  conveyor  of  the  said  defendants,  and  then 
and  there  went  into  said  vacant  lot,  and  over  to  said  coal 
conve.yor  and  was  then  and  there  playing  about  and  on  said 
coal  conveyor;  and  the  plaintiffs  further  aver  that  the  said 
defendants  then  and  there  carelessly  and  negligently  failed 
and  neglected  to  provide  a  covering  or  fence  around  the  said 
machinery  and  said  coal  conveyor,  to  prevent  children  from 
having  access  to  the  same,  but  that  the  said  defendants  then 
and  there  carelessly  and  negligently  allowed  and  permitted 
said  machinery  and  said  coal  conveyor  to  be  and  remain  in 
an  open  and  exposed  condition ;  and  that  bj'  and  through  the 
said  carelessness  and  negligence  of  the  said  defendants  afore- 
said, and  in  so  failing  to  guard  or  cover  the  said  machinery 
and  said  coal  conveyor,  and  in  leaving  the  same  exposed,  the 
plaintiffs'  deceased,  while  then  and  there  playing  on  and 
about  said  coal  conveyor,  and  at  all  times  in  the  exercise  of 
ordinary  care  for  his  own  safety,  was  then  and  there  caught 
in  a  sprocket  wheel  of  the  said  coal  conveyor  and  was  then 
and  there  and  thereby  crushed  and  mangled,  and  plaintiffs' 
deceased  then  and  there,  immediately  thereafter,  came  to 
his  death  by  reason  of  being  so  crushed  and  mangled. 


PERSONAL  INJURIES  815 

And  the  plaintiffs  aver  that  the  said left  him  sur- 
viving   his  mother  as  his  only  heir  at  law  and  next 

of  kin,  and  that  by  reason  of  the  death  of  the  said 

the  said has  been  and  is  deprived  of  the  pecuniary 

aid  and  assistance  of  the  said ,  and  of  her  means 

of  support.  All  to  the  damage  of  the  plaintiffs  as  adminis- 
trator aforesaid,  in  the  sum  of dollars ;  and 

therefore  they  bring  this  suit.  (Add  administration  clause,  as 
in  Section  1495,  last  paragraph) 

1499  Attractive  machinery;  torpedo  in  railroad  yard,  Narr. 
(D.  0.) 

For  that  heretofore,  to  wit,  on  and  prior  to  the   ....   day 

of ,  the  defendants  the W  and  W  S 

kept,  maintained,  operated  and  controlled  upon  the  land  and 
premises  and  right  of  way  of  the  defendant  W  S  in  the  county 

of certain  cars  known  as  repair  cars  upon  which 

the  agents  and  servants  of  the  defendants  were  employed; 
and  the  said  defendants  for  the  purpose  of  protecting  their 
property  and  the  lives  of  their  employees  from  danger  of 
accident  and  collision  with  railroad  cars  and  locomotives  and 
for  the  purpose  of  warning  approaching  cars  and  locomotives 
at  any  place  or  time  of  persons  on  the  repair  cars  of  the 
defendants  on  said  railroad  tracks,  kept  and  used  among  other 
things,  a  certain  kind  of  device,  contrivance  and  apparatus 
called  a  torpedo,  containing  a  powerful  and  dangerous 
explosive  designed  to  be  capable  of  being  set  off  by  concus- 
sion, and  said  torpedo  was  so  charged  and  loaded  with  an 
explosive  that  any  person  being  in  close  proximity  to  the  same 
at  the  time  of  it  being  exploded  and  set  off  might  and  could 
be  much  hurt,  maimed,  disabled  and  wounded;  that  a  part  of 
said  railroad  lands  and  premises  and  right  of  way  in  the 
said  county  of  immediately  north  of  the  cor- 
porate limits  of  the  city  of ,  runs  along  and  near 

a  settlement  and  large  number  of  dwelling  houses  in   said 

county  collectively  known  as   ,  whereupon,  the 

day  and  year  aforesaid,  and  a  long  time  prior  thereto,  a  large 
number  of  children  resided. 

And  the  plaintiff  further  avers  that  on  the  date  aforesaid 
and  prior  thereto  and  at  the  place  aforesaid  there  ran  parallel 
to  the  main  line  tracks  of  said  defendant  railway  company 
certain  lines  of  tracks  known  as  side  tracks  to  which  the 
repair  cars  of  the  defendants  were  transferred  by  means  of 
switches  so  that  said  cars  of  defendants  would  remain  station- 
ary for  a  long  time  at  the  place  aforesaid  without  obstruct- 
ing the  main  line  tracks  of  the  defendant  railway  company; 
and   the   plaintiff   avers   that   for   a   long   time,   to   wit,    for 

months  or  more  preceding  and  up  to  the  day 

and  date  last  above  mentioned  a  large  number  of  children 


816  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

residing  at  and  in  the  neighborhood  of  afore- 
said, were  in  the  habit  of  and  accustomed  to  phiy  upon,  around 
and  about  the  said  switches  and  siding  where  the  repair  cars 
of  the  defendant  telegraph  company  and  tlie  defendant  rail- 
way company  were  located,  and  to  converse  and  play  with  the 
agents,  servants  and  employees  of  said  defendants  living  and 
working  upon  and  about  said  repair  cars;  of  all  of  which  the 
said  defendants  had  notice.  And  thereupon  it  became  and  was 
the  duty  of  the  said  defendant  telegraph  company,  and  the  said 
defendant  railway  company,  their  agents  and  servants,  not 
to  place  or  permit  to  be  placed,  or  to  suffer  any  of  their  said 
torpedoes  to  remain  upon  the  ground  and  premises  of  said 
railway  com;pany  at  the  place  aforesaid,  unguarded,  without 
notice  or  warning  where  such  torpedoes  would  attract  the 
attention,  interest,  instinct,  or  curiosity  of  children  entering 
upon  and  accustomed  to  play  upon  said  premises ;  and  it 
became  and  Avas  the  duty  of  the  defendant  telegraph  com- 
pany and  the  defendant  railway  company  not  to  leave  or  per- 
mit any  of  their  torpedoes  to  remain  upon  the  ground  and 
premises  aforesaid  without  taking  due,  proper  and  reasonable 
means  and  care  to  prevent  a  child  of  tender  years  from 
ignorantly  and  unwittingly  and  through  childish  thought- 
lessness causing  any  of  the  torpedoes  of  said  defendants  to 
explode. 

Yet,  the  said  defendants,  their  agents  and  servants,  disre- 
garding their  duty  in  the  premises  did  carelessly  and  neg- 
ligently place  and  permit  to  be  placed  and  left  upon  the  ground 
and  premises  and  right  of  way  of  the  said  railway  company 
at  the  time  and  place  aforesaid,  unguarded  and  without  notice 
or  warning,  a  torpedo  as  aforesaid,  where  said  torpedo  would 
attract  the  attention,  instinct,  interest  and  curiosity  of  chil- 
dren entering  upon  the  said  premises  and  right  of  way  as 
aforesaid ;  and  the  said  defendants  did  leave  and  permit  the 
torpedo  as  aforesaid  to  remain  upon  the  ground  and  prem- 
ises aforesaid  without  taking  due,  proper  anc^  reasonable 
means  and  care  to  prevent  any  person  from  ignorantly  and 
unwittingly  and  through  childish  instinct  and  thoughtlessness 
causing  such  torpedo  to  explode,  and  without  labeling  or  mark- 
ing such  torpedo  so  as  to  disclose  its  nature  and  so  as  to  pre- 
vent children  entering  upon  said  premises  as  aforesaid  from 
exploding  the  said  torpedo,  through  ignorance,  curiosity  or 
childish  instinct  or  thoughtlessness. 

And  on,  to  wit,   the    ....    day   of    ,   the  plaintiff 

,  an  infant   of  the   age   of    years, 

residing  at  said  place  called ,  in  said  county  of 

,  in  the  vicinity  and  neighborhood  of  the  spot 

where  the  said  defendants,  their  agents  and  servants  had  left 
one  of  the  torpedoes  aforesaid  upon  the  ground,  entered  with 
other  children  upon  the  premises  aforesaid,  and  while  there 
her  childish  instinct  and  curiosity  were  attracted  to  the  tor- 


PERSONAL  INJURIES  817 

pedo  aforesaid  which  the  said  defendants,  their  agents  and 
servants  had  so  as  aforesaid  carelessly  and  negligently  left 
upon  the  ground  where  the  said  defendants,  their  agents  and 
servants  knew,  or  in  the  exercise  of  due  and  reasonable  cau- 
tion and  care  should  have  known  that  such  torpedo  would 
attract  the  attention,  interest,  curiosity  and  instinct  of  chil- 
dren residing  in  that  vicinity  and  neighborhood  accustomed 
as  aforesaid  to  play  about  said  repair  cars  and  siding;  and 

the  said  plaintiff, ,  then  and  there  and  through 

such  childish  instinct,  curiosity,  ignorance  and  thoughtless- 
ness as  might  have  been  expected  from  a  child  of  her  age, 
picked  up  the  torpedo  aforesaid  and  thoughtlessly  and  ignor- 
antly  believing  the  same  to  contain  money  endeavored  to 
open  the  same  by  striking  it  with  a  stone,  when  said  torpedo 
exploded  with  great  force  and  violence  near  the  face  of  said 
plaintiff  and  permanently  injured  her  so  that  the  sight  of  her 
right  eye  was  totally  destroyed  and  the  sight  of  her  other  eye 
was  permanently  impaired,  and  both  eyes  of  the  said  infant 
and  her  face  and  hands  and  arms  were  lacerated,  bruised  and 
wounded  and  the  said  infant  was  otherwise  injured,  bruised 
and  wounded  and  made  sick,  sore,  lame,  disabled,  and  the  said 
infant  did  then  and  there  suffer  great  mental  and  bodily  pain 
and  distress  which  has  endured  for  a  long  space  of  time,  to 
wit,  from  thence  hitherto,  and  the  said  infant  will  continue  to 
suft'er  great  mental  anguish  and  bodily  pain  and  inconvenience, 
and  has  been  rendered  forever  incapable  of  attending  to 
any  business  or  occupation  as  she  would  otherwise  have  been 
able  to  do ;  and  the  said  defendant  W  S,  their  agents  and 
servants  other  wrongs  and  injuries  to  the  said  plaintiff 
did  commit. 

And  the  said  infant  plaintiff  avers  that  the  said  wrongs 
and  injuries  were  done,  caused  and  occasioned  by  the  care- 
lessness, negligence  and  want  of  due  and  reasonable  care 
on  the  part  of  said  defendant  W  and  the  said  defendant  W 
S,  their  agents  and  servants,  in  carelessly  as  aforesaid,  and 
negligently  as  aforesaid,  placing  and  leaving  and  causing  to 
be  placed  and  left  exposed,  unguarded  and  unprotected,  and 
without  notice  or  warning  to  the  plaintiff,  upon  the  said 
premises  at  the  place  aforesaid,  the  torpedo  aforesaid  in  the 
neighborhood  aforesaid,  to  the  great  wrong  and  injury  of  the 
said  plaintiff  in  the  sum  of dollars. 

1500  Backing  train,  injuring  flagman,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the    day  of 

,  19.  .,  at,  to  wit,  the  county  aforesaid,  the  defendant 

was  the  owner  of,  possessed  of,  and  had  control  of  a  certain 
railroad  together  with  branches,  switches  and  connecting  lines 
one  with  another  which  said  railroad  then  extended  with  its 
many  wings,  switches  and  sidetracks  from  the  main  line  of  the 


818  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

road  to  the  Illinois  State  Fair  grounds.  That  among  the  many- 
sidetracks  or  connecting  branches  of  said  railroad  there 
extended  a  certain  sidetrack  or  branch  track  of  defendant's 
to  said  main  track  of  railroad  leading  from  the  southeast 
corner  of  the  Illinois  State  Fair  grounds  south  and  east  to  a 

distance  of  about feet,  wiiere  said  branch  track 

of  defendant's  said  railroad  connects  or  intersects  with  its 
main  line  of  tracks. 

And  the  plaintiff  avers  that  defendant's  said  railroad  track 
as  aforesaid  was  constructed  in  such  a  way,  that  at  a  certain 

point  about  feet  south  of  the  southeast  corner 

of  said  Illinois  State  Fair  grounds,  said  railroad  of  defendant 
makes  a  curve  to  the  east,  the  same  being  the  shape  of  a 
semi-circle.  That  on  the  east  side  of  said  curve  of  defendant's 
railroad  track  there  stand  several  large  buildings  so  that  any- 
one who  might  be  at  or  near  the  said  southeast  corner  of  said 
Fair  grounds  cannot  see  a  train  of  cars  on  account  of  said 
buildings  so  standing  near  thereto. 

And  the  plaintiff  avers  that  the  said  defendant  on  the  day 
and  year  aforesaid,  at  the  county  aforesaid,  operated,  used 
and  controlled  a  certain  number  of  passenger  coaches  with  a 
certain  locomotive  engine  attached  thereto,  commonly  called 
a  passenger  train,  which  said  train  of  passenger  coaclies  was 
then  and  there  used  and  operated  by  defendant  over  and 
upon  its  said  railroad  as  aforesaid  for  the  purpose  of  convey- 
ing persons  back  and  forth  to  and  from  said  Illinois  State 
Fair  while  the  same  was  in  session. 

And  plaintiff  avers  that  the  place  at  the  said  southeast  cor- 
ner of  said  Illinois  State  Fiir  grounds  as  aforesaid  was  one 
of  the  main  entrances  of  said  Fair  grounds  and  was  then  and 
there  crossed  and  intersected  by  two  public  highways  known 
as  the and That  there  were  con- 
stantly teams,  foot-passengers  and  vehicles  passing  to  and  fro 
over  and  upon  a  certain  public  crossing  there  and  the  same 
being  a  place  of  extraordinary  danger  during  the  time  that 
said  Illinois  State  Fair  was  being  held  on  account  of  the 
same  being  used  as  the  main  entrance  to  said  Fair  grounds. 

And  plaintiff  avers  that  there  was  constructed  and  main- 
tained by  the another  side  track  or  branch  rail- 
road leading  from  its  main  track  or  road,  along,  over  and  upon 
said  public  highways,  at  and  parallel  with  defendant's  branch 

track  which  said  branch  railroad  of  said   was 

then  and  there  near  to  and  entered  said  State  Fair  grounds 
along  and  on  the  west  side  of  defendant's  said  track  or  rail- 
road at  said  southeast  corner  of  said  Illinois  State  Fair 
grounds.  That  by  reason  of  the  two  railroads  as  aforesaid 
being  close  together  and  both  crossing  over  and  upon  the  said 
public  highways  as  aforesaid,  and  by  reason  of  the  many 
wagons,  trains  and  vehicles  and  many  foot  passengers  cross- 
ing and  re-crossing  over  and  upon  said  public  highways  where 


person.Uj  injuries  819 

said  railroad  of  the  said   and  defendant's  said 

railroad  enters  said  southeast  corner  of  said  Illinois  State  Fair 
grounds,  it  then  and  there  became  and  was  necessary  for  the 
safety  of  travel  then  and  there  to  have  some  person  at  said 
place  to  act  as  flagman  and  warn  travelers  of  the  approach  of 

the  said trains  when  the  same  were  coming  into 

or  going  out  of  the  said  Illinois  State  Fair  grounds,  as  afore- 
said.   And  the  plaintiff  avers  that  the  deceased,   , 

was  then  and  there  in  the  employment  of  the 

in  the  capacity  of  flagman  at  a  place  where  the  said 

crosses  or  intersects  with  the  said  public  highways  as  afore- 
said.    That  the  place  where  the  deceased  had  to  perform  his 

duty  as  such  flagman,  and  where  the  said had  to 

stand  for  that  purpose,  was  at  and  near  the  defendant's  said 
railroad  and  upon  said  public  highway. 

And  the  plaintiff'  avers  that  it  then  and  there  became  and 
was  the  duty  of  the  defendant  to  so  operate  and  control  its 
said  locomotive  engines  and  train  of  cars  so  that  it  might  be 

reasonably  safe  for  the  said to  discharge  his  duty 

as  such  flagman  for  the  said  company,  while  in  the  exercise 
of  ordinary  care  for  his  safety. 

Yet,  the  defendant  did  not  observe  its  duty  in  that  behalf, 
but  on  the  contrary  it  negligently  and  carelessly,  through  its 
agents  and  servants,  caused  one  of  its  certain  locomotive 
engines  with  said  train  of  cars  attached  thereto,  to  be  backed 
in  a  northerly  direction  over  and  above  and  upon  its  said  track 
then  and  there  back  to  and  into  and  towards  the  said  entrance 
of  the  said  Illinois  State  Fair  grounds,  at  a  high  and  danger- 
ous rate  of  speed,  and  negligently  and  carelessly  then  and 
there  failed  to  give  the  said any  warning  what- 
ever of  the  approach  of  its  said  train  of  cars.  That  by  and 
through  the  careless  conduct  and  neglect  of  duty  of  defendant 
in  that  regard  and  by  reason  of  the  defendant's  said  train 
suddenly  coming  around  said  curve  of  defendant's  said  track 

as  aforesaid  and  by  reason  of  the  said being 

unable  to  see  the  approach  of  defendant's  said  train  of  cars 
so  operated  by  defendant  as  aforesaid,  in  the  manner  as 
aforesaid,  and  by  reason  of  defendant's  failure  to  keep  a 
proper  lookout,  and  by  reason  of  defendant's  not  hav- 
ing sufficient  appliances  on  its  said  train  of  cars  at  the 
rear  end  thereof  so  that  it  could  control  the  same,  and  by 
reason  of  the  improper  control  and  management  of  its  said 
train  in  that  regard  through  its  said  servants  and  agents,  the 

plaintiff's  intestate, ,  who  was  then  and  there  in 

the  employment  of  the  said  as  flagman  for  its 

said  trains  as  aforesaid,  and  while  he  the  said 

was  then  and  there  in  the  exercise  of  due  care  and  caution 
for  his  own  safety,  and  while  in  the  discharge  of  his  duty 
and  employment  as  such  flagman  as  aforesaid,  defendant's 
certain  train  of  cars  with  its  said  locomotive  engine  attached 


820  ANNOTATED   FORMS  OF  PLEADING   AND   PRACTICE 

thereto,  struck  with  great  force  and  violence  then  and  there 

against  the  body  of  the  said   and  thereby  then 

and    there    the    said    was    thrown    with    great 

force  and  violence  to  and  upon  the  ground  there  and  thereby 
received  injuries  from  which  he  shortly  thereafter  died. 
And  plaintiff  avers  that  by  reason  of  the  death  of  the  said 

his  next  of  kin  consisting  of  his  children, , 

,  who  survive  him  are  deprived  of  their  means  of 

support  and  education,  and  plaintifl^'  his  widow  is  deprived  of 
her  means  and  support  in  consequence  thereof.  To  the  dam- 
age, etc.     (Add  last  paragraph  of  Section  1495) 

1501  Backing  train,  injury  to  passenger,  Narr.  (Fla.) 

That  the  defendant  is  a  common  carrier,  engaged  in  said 
county  and  state  in  the  regular  business  of  operating  rail- 
road fines,  and  thereon  by  its  servants  and  employees  operating 
railroad  trains  and  carrying  and  transporting  passengers  and 

freight  for  hire ;  and  as  such,  on and  before  and 

since  that  date,  was  in  the  possession  and  control  of  the  cer- 
tain line  of  railroad  track  extending  from   to 

,  in  said  county,  and  the  certain  engines,  cars, 

machinery,  and  appliances  used  thereon  and  operated  there- 
with, commonly  known  and  designated  as  the  " 

railroad;"  and  operated  and  used  said  track,  cars,  engines, 
machinery,   and  appliances  in  carrying  on  its  said  business. 

On  the  said day  of ,  19 . . ,  the  plaintilf  was  a 

passenger  on  a  certain  train  operated  on  said  line  of  rail- 
road by  the  defendant,  and  the  defendant,  for  a  certain  sum 
of  money  to  it  then  paid,  received  the  plaintiff  as  a  passenger, 
and  then   and  there  undertook  and  agreed  to   safely   carry 

the  plaintiff  on  said  train  from to 

on  said  line  of  railroad.     Before  reaching  ,  and 

at  a  regular  station  of  the  defendant  on  said  road  known  as 

,  the  train  on  which  plaintiff  was  a  passenger  was 

stopped  by  defendant  and  there  waited  for  a  long  time,  to  wit, 

about    minutes,   for  the   arrival  at    

of  another  train  on  defendant's  railroad. 

Plaintiff  further  says  that  when  said  train  was  stopped, 

as  aforesaid,  at ,  the  locomotive  engine  which  was 

attached  to  and  drawing  said  train  was  by  defendant 
uncoupled  and  detached  from  the  cars  provided  for  and  used 
by  the  passengers  on  said  train,  and  moved,  with  a  car  or  cars 
which  it  was  drawing,  to  another  railway  track  or  tracks  of 
the  defendant,  and  that  the  car  in  which  said  plaintiff'  was 
a  passenger,  and  other  cars  carrying  passengers,  on  said  train, 

were  left  standing  at  said  station  called ;  that 

while  said  passenger  cars  were  so  standing  still,  and  while  the 
plaintiff  was  on  the  platform  extending  from  and  between 
said  passenger  cars  and  connecting  the  same,  the  defendant 


PERSONAL  INJURIES  821 

negligently  and  carelessly  caused  said  locomotive  engine  to  be 
run  backward  with  great  force  and  violence  against  said 
passenger  cars  so  standing  on  said  track,  and  thereby  caused 
the  plaintiff  to 'be  thrown  over  and  between  the  platforms 
of  said  passenger  cars,  and  the  plaintiff's  right  foot  to  be 
caught  between  the  buffers  of  said  passenger  car  platforms, 
whereby  the  plaintiff's  right  foot  was  wounded,  crushed, 
broken,  and  greatly  and  permanently  injured. 

Plaintiff  avers  that  the  defendant  and  its  agents  and 
servants  did  not  exercise  all  reasonable  care  and  diligence  in 
running  its  said  locomotive  engine  and  cars,  and  did  not  use 
and  exercise  all  reasonable  care  and  diligence  in  running  said 
locomotive  engine  backward  against  said  passenger  cars,  and 
that  the  said  injury  to  the  plaintiff  was  caused  by  the  care- 
lessness and  negligence  of  the  defendant  and  its  agents  and 
servants  in  running  said  engine  and  cars  and  by  the  failure 
of  the  defendant  and  its  said  agents  to  use  and  exercise  the 
reasonable  care  and  diligence  required  by  law;  that  the 
defendant  ran  its  said  locomotive  engine  against  said 
passenger  cars  with  great  and  unnecessary  force  and  violence ; 
that  said  defendant,  when  bringing  and  running  its  said  engine 
against  said  passenger  cars,  and  when  about  to  bring  and  run 
said  engine  to  and  against  said  cars,  gave  no  signal,  notice, 
or  warning  of  the  approach  of  said  engine,  or  that  the  same 
would  be  brought  or  run  to  and  against  said  cars;  that  the 
defendant,  in  running  its  said  locomotive  engine  and  train  of 
cars,  did  not  provide  and  use  on  and  between  said  passenger 
cars  a  certain  appliance  known  as  a  "buffer  iron,"  which  said 
appliance  is  a  metal  j)late  covering  the  space  or  opening 
between  the  ends  or  buffers  of  cars  used  for  passengers,  and 
which  appliance  was  and  is  necessary  for  the  safety  and 
security  of  passengers  on  railway  trains  occupying  the  plat- 
form of  the  cars,  and  in  getting  on  and  oft'  said  cars,  and  in 
going  from  one  car  to  another  car  on  the  same  train,  and  is 
generally  and  commonly  used  by  common  carriers  and  rail- 
way companies  as  a  means  of  protection  and  safety  for  pas- 
sengers and  employees  on  railroad  trains. 

By  means  of  which  negligence  and  want  of  care  on  the  part 
of  the  defendant,  its  agents  and  servants,  and  by  reason 
of  which  failure  and  refusal  on  the  part  of  the  defendant,  its 
agents  and  servants,  to  exercise  and  use  all  reasonable  care 
and  diligence  in  running  its  said  locomotive  engine  and  cars, 
the  plaintiff  has  sustained  the  injuries  as  aforesaid,  and  has 
lost  the  use  of  her  foot,  has  become  permanently  maimed  and 
crippled,  has  suffered  great  pain  and  anguish  of  body  and 
mind,  has  been  made  sore  and  sick,  and  her  health  and  strength 
of  body  have  been  permanently  impaired,  injured,  and  dam- 
aged.    Wherefore,  etc. 


822  ANNOTATED   FOKMS   OF    PLEADING   AND    PltACTlLE 

1502  Boiler  bursting,  Narr.  (111.) 

For  that  whereas,  on  or  about  the day  of   , 

19.  .,  the  defendant,  ,  owned,  operated  and  con- 
trolled a  certain  then  boiler,  with  certain  then  flues  attached 
for  the  purpose  of  developing  power  to  propel  certain  then 
machinery  in  its  plant;  that  on  the  day  and  date  last  afore- 
said, plaintiff's  intestate  was  in  the  employ  of  said  defendant 
as  a  fireman  or  water  tender,  and  was  engaged  in  the  execution 
of  said  usual  and  customary  duties  for  the  defendant,  his 
employer;  that  it  then  and  there  became  and  was  the  duty  of 
the  defendant  to  use  care  to  furnish  plaintiff's  intestate  with 
a  reasonably  safe  appliance  and  to  keep  the  appliances  in 
and  about  where  plaintiff's  intestate  was  required  to  work  in 
a  reasonably  safe  condition;  but  that  the  defendant  wholly 
failed  in  its  duty  in  this  behalf  and,  on  the  contrary,  while  the 
plaintiff' 's  intestate,  in  the  exercise  of  all  due  care  and  caution 
for  his  own  safety,  was  working  in  a  certain  then  pit  in  front 
of  the  firebox  of  said  boiler,  the  defejidant  negligently  and 
carelessly  suffered  and  permitted  a  certain  then  flue  to  be  and 
become  defective,  in  this,  that  said  flue,  at  a  certain  portion 
thereof,  was  negligently  sufl'ered  and  permitted  to  become  thin, 
and  much  thinner  than  other  portions  of  the  said  flue,  and 
much  thinner  than  was  usual  and  customary  in  such  flues;  all 
of  which  the  defendant  well  knew,  or  in  the  exercise  of  reason- 
able inspection  could  have  known,  and  of  which  plaintift"s 
intestate  was  ignorant  and  had  no  opportunity  of  knowing; 
so  that,  by  reason  of  the  negligence  of  the  defendant,  as  afore- 
said, in  furnishing  said  flue,  which  was  then  and  there  defec- 
tive, as  aforesaid,  said  flue  by  reason  of  said  defects  then  and 
there  exploded,  and  blew  out ;  and  that  by  reason  of  the 
premises,  large  quantities  of  boiling  water  and  steam  were 
thrown  and  projected  down  and  upon  plaintift"s  intestate  in 
said  pit,  and  by  reason  of  the  premises  plaintiff's  intestate  was 
killed.    (Add  last  two  paragraphs  of  Section  1495) 

1503  Breaks  defective,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on ,  .  . .  .,  19.  ., 

,  to  wnt,  at  the  county  aforesaid,  the  defendant 

was  possessed  of  a  certain  car  loaded  with  iron  ore  which  was 
located  on  a  certain  trestle  work  or  elevated  track  a  great 

distance,  to  wit,   feet  above  the  ground  there, 

in  which  said  car  was  a  certain  aperture  or  chute  through 
which  ore  from  said  car  was  unloaded,  and  in  order  that  said 
car  might  be  unloaded  safely  it  was  necessary  that  the  wheels 
thereof  be  locked  by  a  brake  or  in  some  way  fixed  or  secured 
so  that  said  car  would  not  move  nor  jerk  while  ore  was  being 
unloaded  from  said  car  and  thereby  throw  from  said  car  the 
persons   engaged  in  unloading   the   same;   and   it  then   and 


PERSONAL  INJURIES  823 

there  became  and  was  the  duty  of  the  defendant  to  have  and 
keep  said  car  and  the  brake  and  all  parts  thereof  in  good  and 
safe  repair  and  condition  so  that  the  wheels  of  said  car  could 
be  tightly  locked  and  rendered  immovable  by  said  brake  and 
not  to  set  any  of  its  servants  at  work  unloading  said  car 
unless  the  wheels  thereof  were  locked  or  so  fixed  or  secured 
that  said  car  would  not  move  or  jerk  while  the  same  was  being 
unloaded,  and  to  furnish  its  servants  whom  it  might  set  to 
unloading  said  car  a  safe  place  to  work.  Yet  the  defendant, 
not  mindful  of  its  duty  in  this  regard,  carelessly  and 
negligently  had  and  kept  said  car  in  bad  and  dangerous  con- 
dition and  repair,  and  the  brake  thereof  out  of  order,  so  that 
the  same  would  not  work  and  lock  the  wheels  of  said  car,  and 
carelessly  and  negligently  had  said  car  standing  on  said  trestle 
or  elevated  track  without  the  wheels  thereof  being  locked 
or  fixed  or  secured  so  that  said  car  would  not  move  or  jerk 
while  the  same  was  being  unloaded. 

And  the  plaintiff  was  then  and  there  a  servant  in  the  employ 
of  the  defendant  and  the  defendant  then  and  there  carelessly 
and  negligently  ordered  the  plaintiff  to  go  upon  said  car  and 
unload  ore  from  the  same,  and  the  plaintiff  then  and  there, 
without  fault  or  negligence  on  his  part,  in  obedience  to  said 
order  of  said  defendant,  went  upon  said  car  and  proceeded  to 
unload  ore  therefrom,  when  without  fault  or  negligence  on 
the  part  of  the  plaintiff',  and  by  reason  of  the  careless  and 
negligent  misconduct  of  the  defendant  aforesaid,  said  car  sud- 
denly and  violently  moved  or  jerked  and  threw  the  plaintiff 
from  said  car  to  and  upon  the  ground  there;  by  means  of 
which  said  premises,  to  wit,  six  of  the  plaintiff's  ribs  were 
broken  and  his  legs  and  arms  were  broken  and  divers  other 
bones  of  the  plaintiff  were  broken,  and  his  hips  were  dislo- 
cated and  divers  other  of  his  joints  were  dislocated,  and  one 
of  the  plaintiff' 's  legs  was  greatly  and  permanently  shortened, 
and  the  voice,  sight  and  hearing  of  the  plaintiff  were  greatly 
and  permanently  lessened  and  impaired,  and  the  plaintiff  was 
rendered  permanently  subject  to  headaches,  roarings  in  the 
head  and  vertigo,  and  the  plaintiff  suft'ered  severe  and  perma- 
nent internal  injuries,  and  the  arms  and  shoulders  of  the 
plaintiff  were  greatly  and  permanently  injured  and  crippled, 
and  the  plaintiff  was  rendered  permanently  incapable  of  work- 
ing as  a  laborer,   at  which  employment  he  had  theretofore 

earned  large  sums,  to  wit,  $ a  day,  and  was  rendered 

permanently  incapable  of  doing  any  work.  And  also  by  reason 
of  the  premises  the  plaintiff  suffered  great  and  excruciating 
pain  and  agony  and  will  permanently  suffer  the  same  in  the 
future.  And  the  spine  of  the  plaintiff  suffered  a  severe  concus- 
sion, and  was  greatly  and  permanently  injured.  And  the  nerv- 
ous system  of  the  plaintiff  was  greatly  broken,  shattered  and 
permanently  injured.  And  the  plaintiff  was  put  to  a  great 
expense,  to  wit,  an  expense  of  $ for  medical  attendance, 


824  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

medicines  and  nursing,  in  endeavoring  to  be  eared  of  the  injur- 
ies aforesaid,  and  will  be  obliged  to  incur  like  expenditures 
permanently  in  the  future  for  the  same  purpose;  and  also  by 
reason  of  the  premises  the  plaint ifT  has  thence  hitherto  been, 
and  permanently  in  the  future  will  be  unable  to  attend  to  his 
ordinary  affairs  and  business;  and  also  by  reason  of  the  prem- 
ises the  plaintiff'  has  been  and  is  otherwise  greatly  injured, 
to  wit,  at  the  county  aforesaid.  Wherefore,  the  plaintitY  says 
he  is  injured  and  has  sustained  damages  in  the  sum  of 
($ )  dollars,  and  therefore  he  brings  his  suit,  etc.'''* 

(Virginia) 

For  this,  to  wit,  that  before  and  at  the  time  of  the  com- 
mission of  the  grievances  and  wrongs  hereinafter  complained 

of,  to  wit,  on  the day  of ,  19.  .,  the  said 

defendant  company  was  the  owner,  user  and  occupier,  as  a 
common  carrier,  of  a  certain  line  of  railway,  extending  from 

the  city  of   ,  in  the  state  of  Virginia, 

thence  northward  by  one  of  its  stations  named , 

in  the  county  of ,  and  thence  to  the  city  of 

,  in  said  state;  that  said  defendant  usi'd  said 

line  of  railway  for  the  purpose  of  proi)elliiig  and  running 
thereon  by  steam  its  locomotives,  engines  and  cars,  ami  also 
the  cars  of  other  railway  companies,  for  the  transportation 
of  passengers  and  freight ;  and  said  defendant  company  had, 
used  and  maintained  at  certain  of  its  stations,  along  its  rail- 
way line,  and  especially  at  said  station  of 

,  certain  side  tracks  upon  which  it  also  propelletl  its 

engines,  locomotives  antl  cars,  for  the  purpose,  amongst 
other  things,  of  making  up,  shifting,  moving  and  jjlaeing  the 
said  cars  and  its  trains  tlu-reon,  or  in  detaching  from  its  trains 
certain  of  said  cars  and  leaving  them  temporarily  upon  said 
side  tracks  in  the  course  of  its  business  as  a  common  carrier. 

And  the  plaintiff  avers  that  while  the  defendant  company 
was  engaged,  as  aforesaid,  in  the  business  of  a  common  cai'rier, 
before  and  on  the  day  aforesaid,  it  liail  in  its  employment  for 
the  purposes  aforesaid  a  large  force  of  servants,  consisting  in 
part  of  conductors,  engineers,  firemen,  flagmen  and  brake- 
men,  to  operate  and  run  its  trains,  both  passenger  and  freight, 
over  its  said  railway  and  over  and  along  its  side  tracks  afore- 
said at  its  stations  aforesaid ;  and  amongst  the  servants  afore- 
said in  the  employment  of  defendant  company  was  plaintift"s 
intestate,  whose  duty  was,  among  other  things,  to  assist  in 
running  and  operating  said  trains  and  said  cars  over  and  along 
said  railway  line,  and  in  shifting  and  changing  cars,  taking 
them  up  and  leaving  them  at  said  stations  and  on  the  side 

tracks  aforesaid,  and  especially  at  said  station  of , 

on  and  before  the  day  aforesaid.  And  among  the  duties 
especially  required  of  plaintiif's  intestate  was  that  of  manip- 

151  Eylenfeldt  v.  Illinois  Steel  Co.. 
165  111.  185  (1897). 


PERSONAL   INJURIES  825 

ulating  the  brakes  upon  the  ears  in  the  operation  of  which  he 
was  aiding  as  an  employee  of  said  company,  both  on  said  main 
line  and  its  side  tracks. 

Plaintiff  avers  that  it  then  and  there  became  and  was  the 
duty  of  the  defendant  company  to  use  reasonable  and  ordi- 
nary care  in  the  grading,  building  and  constructing  its  said 
railway  line  and  its  side  tracks,  and  especially  at  the  said 

station  of ,  so  as  to  have  and  maintain  them  in  a 

reasonably  safe  condition  for  its  servants  and  employees  to 
operate  its  trains  and  cars  (whether  said  trains  were  intact  or 
detached)  with  safety  to  life  and  limb,  and  whether  its  cars 
were  connected  with  or  disconnected  from  its  engines  and 
locomotives;  and  at  all  times  was  it  defendant's  duty  to  use 
ordinary  care  to  warn,  guard  and  protect  its  servants  and 
employees  against  such  accidents  and  casualties  as  might  be 
reasonably  foreseen  and  prevented  by  said  defendant  com- 
pany ;  and  especially  was  it  its  duty  to  use  ordinary  care  in  so 
grading  and  maintaining  its  main  line  and  side  tracks  and  in  so 
providing  and  equipping  its  engines,  locomotives,  trains  and 
cars  with  proper  and  adequate  brakes  as  to  avoid  injury  to 
its  servants  and  employees  in  their  use  and  operation.  And 
especially  was  it  the  duty  of  said  defendant  company  in 
operating  its  engines,  locomotives,  trains  and  cars  on  said  side 
tracks,  for  the  purposes  aforesaid,  that  is  to  say,  for  the  pur- 
pose of  shifting  its  cars  from  one  track  to  another  or  taking  up 
cars  standing  on  said  side  tracks  by  connecting  them  with 
its  engines,  locomotives,  trains  and  other  ears,  or  detaching 
cars  from  its  train  and  leaving  them  on  said  side  tracks,  to 
use  ordinary  care  in  so  governing,  controlling  and  moderat- 
ing the  speed  of  its  engines,  locomotives,  trains  and  cars, 
whether  connected  or  disconnected  with  its  engines  or  loco- 
motives, as  to  avoid  by  any  violent  collision  between  the 
stationary  and  moving  cars,  or  train  of  ears,  casualties  and 
injuries  to  its  employees  and  servants  then  and  there  operat- 
ing them.  Yet,  the  defendant  company,  regardless  of  its  duty 
in  this  behalf,  did  not  use  reasonable  and  ordinary  care  in 
grading,  building  and  constructing  its  said  railway  lines  and 

its  side  tracks,  especially  at  the  said  station  of , 

so  as  to  have  and  maintain  them  in  a  reasonably  safe  condition 
for  its  servants  and  employees  to  operate  its  trains  and  cars 
for  the  purposes  aforesaid;  and  it  did  not  use  ordinary  care 
in  so  providing  and  equipping  its  engines,  locomotives,  trains 
and  cars  with  proper,  adequate  and  sufficient  brakes  as  to 
avoid  injury  to  its  servants  and  employees,  but  was  careless 
and  negligent  in  the  performance  of  its  duty  in  the  respects 

aforesaid  at  said  station  of ,  on  the  day  and  year 

aforesaid. 

And  plaintiff  avers  that  at  said  station  of on 

the  day  and  year  aforesaid  said  side  track  was  improperly  and 
negligently  constructed,  in  this,  to  wit,  that  for  the  purpose  of 


826  ANNOTATED  FORMS  OF   PLEADING   AND   PR.VCTICE 

operating  or  moving  said  train  of  cars,  or  any  of  them,  when 
detached  from  its  engine  and  without  the  control  of  its  engine 
properly  and  adequately  e<iuipped  with  brakes,  the  grade  was 
too  great  for  the  safe  movement  of  any  one  or  more  of  its  cars 
in  a  southerly  direction,  which  was  down  grade,  from  a 
point  on  said  side  track  nearly  opposite  its  station,  unless  the 
said  cars  were  adec^uately  and  proi)erly  equipped  with  brakes.* 
And  plaintiff  avers  that  on  the  day  and  year  aforesaid, 
while  one  of  defendant's  freight  trains  was  at  said  station  of 

,  northward  bound  in  the  course  of  its  business, 

its  engine,  locomotive,  tender  and  several  of  its  cars,  coupled 
to  said  engine  or  locomotive  and  severally  and  consecutively 
linked  together,  composing  a  part  of  its  train,  M'as  moved  from 
said  main  track  to  said  side  track  under  the  direction  and 
order  of  its  conductor  who  carelessly  and  negligently,  without 
the  exercise  of  ordinary  care,  caused  some  of  said  cars  to  be 
cut  loose  or  disconnected  from  said  engine  while  upon  said 
side  track,  for  the  purpose  of  being  propelled  in  a  southern 
direction  and  on  a  down  grade  to  where  was  stationed  one  or 
more  cars  upon  said  side  track,  for  the  purpose  of  being  con- 
nected with  the  latter  and  subsequently  moved  with  them 
from  said  side  track  on  to  said  main  track,  or  for  the  purpose 
of  being  left  upon  said  track  along  with,  and  coupled  to,  said 
stationary  cars;  and  it  then  and  there  became  the  duty  of 
plaintiffs 's  intestate  to  ride  upon  one  of  the  said  cars,  and  as 
they  approached  said  stationary  cars  to  tighten  the  brakes 
upon  said  car  for  the  purpose  of  moderating  the  speed  of  said 
moving  cars  and  preventing  a  violent  and  dangerous  collision 
of  said  moving  cars  Avith  those  standing  upon  said  side  track. 
But,  owing  to  the  defective  and  inadecjuate  condition  and 
character  of  the  brakes  attached  to  the  car  upon  which  plain- 
tiff's intestate  was  riding  and  the  steepness  of  the  downward 
grade,  the  momentum  of  the  cars  being  increased  by  the 
steepness  of  the  grade,  plaintiff's  intestate,  notwithstanding 
he  tightened  said  brakes  to  the  best  of  his  ability,  was  unable  to 
check  or  moderate  their  speed  and  the  car  upon  which  he  Avas 
riding  came  in  contact  with  said  stationary  cars  with  such 
degree  of  violence  that  the  plaintiff's  intestate  was  precipi- 
tated to  and  upon  said  side  track,  said  stationery  cars  were 
propelled  from  their  position  and  plaintiff's  intestate  was 
run  over  by  the  car  upon  which  he  had  been  riding,  both  of 
his  legs  and  one  of  his  arms  were  cut  off,  and  his  death  shortly 
thereafter,  to  wit,  in  a  few  hours,  occasioned  thereby.  And 
plaintiff  says  that  by  the  wrongful  act,  neglect  and  default  of 
the  said  defendant  company  in  not  using  ordinary  care  in 
having  and  maintaining  a  properly  graded  side  track  at  said 
station,  and  especially  in  negligently  causing  said  cars  to  be 
cut  loose  from  the  engine  and  propelled  doAvn  said  side  track 
whose  steep  grade  Avas  Avell  knoAvn  to  defendant  Avlien  the  car 
aforesaid,  upon  which  his  intestate  was  riding,  was  not  pro- 


PERSONAL   INJURIES  827 

vided  with  proper  and  adequate  brakes  at  the  time  and  place 
aforesaid,  as  was  well  known  to  defendant,  his  intestate  suf- 
fered the  injuries  aforesaid  and  lost  his  life.  And  plaintiff 
avers  that  the  injury  suffered  as  aforesaid  by  his  intestate 
resulted  from  the  negligence  of  an  agent  of  said  defendant 
company  of  a  higher  grade  of  service  than  that  of  his  inte- 
state, and  from  that  of  a  person  employed  by  said  company 
having  the  right  and  charged  with  the  duty  of  controlling 
and  directing  the  general  services,  or  the  immediate  work,  of 
plaintiff's  intestate,  to  wit,  its  conductor. 

2.     (Consider  first  count  to  star  as  here  repeated  the  same 
as  if  set  out  in  words  and  figures.) 

And  plaintiff'  avers  that  on  the   day   and  year  aforesaid, 
while  one  of  the  defendant  company's  freight  trains  was  at 

said  station  of ,  northward  bound  in  the  course 

of  its  business,  its  engine,  locomotive,  tender  and  several  of 
its  cars  composing  a  part  of  its  train  was,  by  order  of  the  con- 
ductor of  said  train  who  under  the  rules  of  said  defendant  com- 
pany had  control  and  management  of  said  train  and  all  of  the 
servants  of  said  company  connected  therewith,  moved  from 
said  main  track  to  said  side  track.  And  plaintiff  further 
avers  that  said  engine  or  locomotive  was  not  then  and  there 
properly  provided  with  safe,  adequate  and  sufficient  brakes. 
And  plaintiff  further  avers  that  said  engine  or  locomotive, 
with  several  cars  attached  to  it,  as  aforesaid,  was  by  its  engi- 
neer negligently  and  carelessly  and  without  using  ordinary 
care  started  backward  along  and  down  said  side  track  in  a 
southerly  direction  at  a  high,  immoderate  and  dangerous 
rate  of  speed  and  when  said  engine  with  the  cars  attached  to 
it  approached  certain  cars  standing  further  down  said  side 
track  its  engineer  endeavored  in  vain  to  moderate  or  lessen 
its  speed,  because  said  brakes  attached  to  said  engine  were 
inadequate  and  insufficient  to  control  it,  and  by  reason  of  the 
defective  condition  and  character  of  said  brakes,  of  which 
said  engineer  and  conductor  had  previous  knowledge,  said 
cars  whose  momentum  was  increased  by  said  downward  grade 
came  in  contact  with  certain  cars  standing  upon  said  side 
tracks  with  great  force  and  violence,  and  plaintiff's  intestate, 
who,  in  the  performance  of  his  duty,  was  riding  upon  the  car 
which  collided  with  said  stationary  car,  was  precipitated  by 
reason  of  the  violence  of  said  collision  in  and  upon  said  side 
track  and  was  run  over  by  the  car  upon  which  he  had  been 
riding,  his  legs  and  one  of  his  arms  were  cut  off  and  his  death 
occasioned  thereby. 

And  plaintiff  says  that  by  the  wrongful  act,  neglect  and 
default  of  the  said  defendant  company,  in  not  using  ordinary 
care  in  equipping  and  providing  the  said  engine  with  ade- 
quate, safe,  proper  and  sufficient  brakes,  at  the  time  and 
place  aforesaid  and  for  the  work  aforesaid,  in  which  plain- 
tiff's intestate  was  required  by  defendant  company  to  take 


828  ANNOTATED   FORMS   OP    PLEADING    AND   PRACTICE 

part,  and  by  reason  of  the  want  of  ordinary  care  on  the  part 
of  said  conductor  in  causing  said  engine  and  cars  to  be 
transferred  to  said  track  and  allowing  them  to  be  proi)elled 
along  the  same  in  the  manner  aforesaid  regardless  of  the 
condition  of  said  brakes  and  said  grade,  and  by  reason  of 
the  want  of  ordinary  care  on  the  part  of  said  engineer  in 
propelling  said  engine  and  cars  along  said  side  track  in  man- 
ner aforesaid,  regardless  of  the  condition  of  said  brakes  and 
said  grade,  his  intestate  suffered  the  injuries  aforesaid,  and 
his  death  was  occasioned  thereby. 

3.  (Consider  first  count  to  star  as  here  repeated  the  same 
as  if  set  out  in  words  and  figures.) 

And  plaintiff  avers  that  on  the  day  and  year  aforesaid, 
while  one  of  the  defendant's  freight  trains  was  at  said  sta- 
tion of   ,  northward  bound  in  the  course  of  its 

business,  its  engine,  locomotive,  tender  and  several  of  its 
cars  coupled  to  said  engine  or  locomotive  and  severally  and 
consecutively  linked  together,  composing  a  part  of  its  train, 
was  moved  from  said  main  track  to  said  side  track,  by  the 
order  and  command  of  the  conductor  of  said  train,  for  the 
purpose  of  being  propelled  in  a  southern  direction  and  on 
a  down  grade  to  where  was  stationed  one  or  more  cars  upon 
said  side  track  for  the  further  purpose  of  being  connected 
with  the  latter  and  subsequently  moved  with  them  from  said 
side  track  on  to  the  said  main  track,  or  for  the  purpose  of 
being  left  upon  said  side  track  along  with,  and  coupled  to, 
said  stationary  ears. 

And  plaintiff  further  avers  that  after  said  engine  and  the 
cars  attached  to  same  had  reached  said  side  track,  for  the 
purpose  aforesaid,  some  of  the  cars  attached  to  said  engine 
were  negligently,  carelessly  and  recklessly,  and  without  the 
exercise  of  ordinary  care,  cut  loose  from,  or  disconnected 
from,  said  engine,  or  the  cars  next  to  said  engine,  and  turned 
loose  upon  said  downward  grade  by  one  or  more  of  its  brake- 
men  who  were  agents  or  servants  of  said  defendant  company, 
for  the  purpose  of  being  sent  or  allowed  to  roll  to  said  sta- 
tionary cars  for  the  purposes  aforesaid,  after  reaching  said 
stationary  cars ;  and  it  then  and  there  became  the  duty  of 
plaintiff's  intestate  to  ride  upon  one  of  said  cars  as  they 
moved  along  said  side  track  in  the  direction  of  said  stationary 
cars,  and,  as  they  approached  said  stationary  cars,  to  tighten 
the  brakes  upon  the  car  upon  which  he  was  riding  for  the 
purpose  of  moderating  or  lessening  the  speed  of  said  moving 
cars  and  preventing  a  violent  and  dangerous  collision  of  said 
moving  cars  with  those  standing  upon  said  side  track.  But 
owing  to  the  defective  and  inadequate  condition  and  character 
of  the  brakes  attached  to  the  car  upon  which  plaintiff's  intes- 
tate was  riding  and  the  downward  grade,  the  momentum  of 
the  cars  being  increased  by  said  downward  grade,  plaintiff's 
intestate,   notwithstanding   he   tightened  said   brakes  to   the 


PERSONAL    INJURIES  829 

best  of  his  ability,  was  unable  to  check,  lessen  or  moderate 
the  speed  of  said  cars,  and  the  car  upon  which  he  was  riding 
came  in  contact  with  said  stationary  cars  with  such  degree 
of  violence  that  plaintiff's  intestate  was  precipitated  to  and 
upon  said  side  track.  Said  stationary  cars  were  propelled 
from  their  position  by  the  impact  and  plaintiff's  intestate 
was  run  over  by  the  car  upon  which  he  had  been  riding  and 
both  of  his  legs  and  one  of  his  arms  were  cut  off  and  his 
death  shortly  thereafter,  to  wit,  in  a  few  hours,  was  occasioned 
thereby. 

And  plaintiff  further  says  that  it  was  the  duty  of  the  con- 
ductor of  said  train  to  supervise,  control  and  direct  its  move- 
ments; to  control,  govern  and  direct  the  engineer,  brakemen, 
firemen,  flagmen  and  all  of  the  servants  of  the  said  company 
connected  with  said  train,  all  of  whom  were  subordinate  to 
and  subject  to  his  authority;  and  it  was  especially  the  duty 
of  the  said  conductor  to  prevent  said  cars  from  being  cut 
loose  from  said  engine  while  upon  said  side  track  in  order 
that  the  engine  to  which  said  cars  were  attached  might  aid 
in  governing,  controlling,  moderating  and  checking  the  speed 
of  said  cars  and  train  in  its  movement  down  said  side  track 
towards  said  stationary  cars  and,  in  that  way,  avoid  a  violent 
and  dangerous  collision  between  said  moving  cars  or  train 
of  cars  and  said  stationary  cars. 

And  plaintiff  says  that  said  conductor  did  not  prevent  or 
attempt  to  prevent  the  servants  of  said  company,  to  wit,  its 
brakemen,  from  severing  said  train  of  cars  upon  said  side 
track,  as  it  was  his  duty  to  do,  and  in  said  omission  and 
failure  he  did  not  exercise  ordinary  care,  but  negligently, 
carelessly  and  recklessly  failed  to  perform  his  duty  in  that 
respect. 

And  plaintiff  says  that  by  the  wrongful  act,  neglect  and 
default  of  said  defendant  company  in  not  using  ordinary  care 
in  having  and  maintaining  a  properly  graded  side  track  at 
said  station,  and  in  negligently  causing  said  cars  to  be  cut 
loose  from  said  engine  and  allowing  them  to  roll  down  said 
track,  whose  downward  grade  was  well  known  to  said  defend- 
ant company,  and  in  failing  to  provide  and  equip  said 
car  upon  which  plaintiff's  intestate  was  riding  with  proper 
and  adequate  brakes,  whose  defective  character  was  also 
well  known  to  the  defendant,  and  also  in  consequence  of  the 
negligence  of  the  said  conductor  and  his  want  of  ordinary 
care  in  failing  to  prevent  one  or  more  of  defendant's  servants 
from  severing  said  train  of  cars,  said  conductor  having  the 
right  to  control  the  brakemen  and  servants  of  said  company 
who  cut  said  train  of  cars  in  twain  upon  said  track,  his  intes- 
tate suffered  the  injuries  aforesaid  and  his  death  was  occa- 
sioned thereby. 

4.  (Consider  first  count  to  star  as  here  repeated  the  same 
as  if  set  out  in  words  and  figures.) 


830  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

And  plaintiff  avers  that  on  the  day  and  year  aforesaid, 
while  one  of  the  defendant's  freight  trains  was  at  said  station 
of  ,  northward  bound  in  the  course  of  its  busi- 
ness, its  engine,  locomotives,  tender  and  several  of  its  cars 
coupled  to  said  engine  or  locomotive  and  severally  and  consec- 
utively linked  together,  composing  a  part  of  its  trains,  was 
moved  from  said  main  track  to  said  side  track  by  the  order 
and  command  of  the  conductor  of  said  train,  for  the  purpose 
of  being  propelled  in  a  southern  direction  and  on  a  down 
grade  to  where  was  stationed  one  or  more  cars  upon  said 
side  track  for  the  further  purpose  of  being  connected  with 
the  latter  and  subsequently  moved  with  them  from  said  side 
track  on  to  the  said  main  track,  or  for  the  purpose  of  being 
left  upon  said  side  track  along  with,  and  coupled  to,  said  sta- 
tionary cars. 

And  plaintiff  avers  that  after  said  engine,  with  the  cars 
attached  to  it,  had  reached  said  side  track  for  the  purposes 
aforesaid,  the  engineer  in  charge  of  said  engine,  and  the  cars 
attached  to  it,  negligently  and  carelessly  and  without  the 
exercise  of  ordinary  care  caused  said  cars,  either  while  they 
were  coupled  to  and  connected  with  said  engine,  or  after  they 
had  been  severed  therefrom,  to  be  propelled  down  said  side 
track  in  a  southerly  direction  at  a  high  and  dangerous  rate 
of  speed  which  was  accelerated  by  the  down  grade  of  said 
side  track,  and  negligently  and  carelessly  and  without  the 
exercise  of  ordinary  care  caused  the  advance  car,  propelled 
as  aforesaid  down  said  track,  to  collide  with  the  car  which 
was  stationed  upon  said  side  track  with  such  degree  of  violence 
that  plaintiff's  intestate,  who  was  riding  upon  said  advance 
car  and  endeavoring  to  check  and  minimize  the  speed  of  said 
cars  by  tightening  the  brake  of  the  car  upon  which  he  was 
riding,  as  it  was  his  duty  to  do,  was  precipitated  by  reason 
of  said  violent  collision  in  and  upon  said  side  track,  and  was 
run  over  by  said  car,  the  wheels  of  which  cut  off  one  of  his 
arms  and  both  of  his  legs,  and  his  death  was  occasioned 
thereby. 

And  plaintiff  says  that  by  the  wrongful  act,  neglect  and 
default  of  the  said  defendant  company,  whose  servant  and 
agent  the  engineer  aforesaid  was,  in  manner  and  form  afore- 
said, his  intestate  suffered  the  injuries  aforesaid  and  his  death 
was  occasioned  thereby ;  by  reason  of  all  of  which  said  plaintiff 
hath  a  right  to  recover  of  said  defendant  company  the  sum  of 
dollars. 

And  therefore  he  brings  this  suit. 

1504  Bridge,  collapse,  Narr.  (Md.) 

For  that  the  said  defendant  is  a  corporation  duly  incor- 
porated and  on  the day  of ,  19 .  . ,  at  ...... 

county,  aforesaid,  was  engaged  and  for  some  time 


PERSONAL  INJURIES  831 

theretofore  had  been  engaged  in  the  erection  and  construc- 
tion of  a  bridge  across  the river  at , 

in  the  county  and  state  aforesaid;  that  said  defendant  was 
then  and  there  placing  the  structural  iron  or  steel  work  used 
in  the  erection  of  said  bridge  upon  piers  or  abutments  which 
had  lately  theretofore  been  constructed  of  cement,  sand  and 
stone  and  commonly  called  concrete  work,  and  which  concrete 
piers  or  abutments  stood  about  equi-distant  from  each  other 

across  said    river ;  that  this  plaintiff  was  then 

employed  by  the  defendant  and  was  then  and  there  the  serv- 
ant of  the  defendant  and  engaged  in  the  work  of  placing 
said  structural  iron  or  steel  work  on  said  piers  or  abutments, 
and  was  then  and  there  using  due  care  and  caution  on  his 
part;  that  whilst  this  plaintiff  was  so  engaged  in  his  afore- 
said work  it  became  and  was  the  duty  of  the  defendant  to 
exercise  all  reasonable  care  to  furnish,  provide  and  maintain 
a  reasonably  safe  place  for  this  plaintiff  to  perform  his  work, 
aforesaid,  and  to  avoid  exposing  this  plaintiff  whilst  so 
employed  to  any  extraordinary  and  unreasonable  peril, 
against  which  this  plaintiff  from  want  of  knowledge  and  skill 
could  not  by  the  exercise  of  due  care  on  his  part  guard 
himself. 

Yet,  the  defendant  well  knowing  its  duty  in  the  premises, 
and  well  knowing  or  by  the  exercise  of  reasonable  care  and 
caution  on  its  part  could  have  known  that  a  certain  one  of 
said  piers,  to  wit,  pier  known  as  "Pier  No.  .  .,"  was,  then  and 

there,  and  at  that  time,  to  wit,  on  the  morning  of 

.  . .  .,  19.  .,  green,  weak,  defective  and  of  insufficient  strength 
to  carry  the  weight  for  which  it  had  been  constructed,  and 
well  knowing  that  this  plaintiff  by  reason  of  lack  of  the 
requisite  scientific  knowledge,  skill  and  experience  could  not 
by  the  exercise  of  ordinary  care  and  prudence  guard  himself 
against  the  weakness,  defectiveness  and  insufficient  strength 
of  said  Pier  No.  .,,  negligently  ordered  and  directed  this 
plaintiff  to  proceed  with  his  work  of  placing  said  structural 
iron   or   steel   work   upon   said  Pier    No.    . . ,    and   whilst    so 

engaged,  to  wit,  on ,  19 .  . ,  at 

county,  aforesaid,  and  whilst  this  plaintiff  was  using  due  care 
and  caution  on  his  part,  the  said  Pier  No.  .  .,  by  reason  of  its 
weakness,  defectiveness  and  insufficient  strength  collapsed 
and  broke  down  under  the  weight  of  said  structural  iron  or 
steel  work,  and  this  plaintiff  by  reason  of  the  defendant's 
negligence  aforesaid,  was  hurled  and  thrown  from  said 
bridge  many  feet  into  the  river  below  and  thereby  was 
greatly  injured  by  having  a  great  gash  cut  in  the  head, 
left  leg  broken  and  shattered,  angle  and  left  foot  crushed, 
right  knee-cap  and  joint  crushed  and  ligaments  torn,  hips  and 
back  injured ;  whereby  and  by  reason  thereof  this  plaintiff  has 


832  ANNOTATED    FORMS   OF    PLEADING    AND   PRACTICE 

been  permanently  injured,  has  suffered  and  still  suffers  great 
pain  and  has  been  put  to  very  great  expense  for  doctors  fees 
and  hospital  bills. 

And  this  plaintiff  claims  $ damages. 

1505  Bridge,  guards  or  railings,  Narr.     (111.) 

For  that  whereas,  before  and  at  the  time  of  the  committing 
of  the  grievances  by  the  defendants  as  hereinafter  mentioned, 
the  defendants  were  acting  as  the  commissioners  of  highways 

of  the  township  of in  the  county  of '  . 

and state  of  Illinois,  and  as  such  commissioners 

had  the  care,  supervision,  po.ssession  and  control  of  a  certain 
public  highway  between  sections  (fourteen  and  fifteen)  in  said 
township,  and  it  was  their  duty  to  keep  said  highway  in  good 
and  safe  repair  and  condition  for  travel,  and  to  build  and 
maintain  proper  and  suitable  bridges  in  said  highway  where 
it  was  crossed  by  creeks,  water-courses  and  drains  so  as  to 
furnish  safe  passage  for  plaintiff  and  every  person  traveling 
along  said  highway  with  a  wagon  drawn  by  a  team  of  horses; 
and  whereas  the  defendants  then  and  for  a  long  time  prior 
thereto  had  adequate  funds  and  material,  and  labor  at  their 
command  with  which  to  keep  said  highway  and  bridges  in 
good  and  safe  repair  and  condition  and  to  build  and  maintain 
proper  and  suitable  bridges  in  said  highway  as  aforesaid ; 
yet  the  defendants,  not  regarding  their  duty  in  tliat  behalf 
while  they  so  had  the  care,  supervision,  possession  and  eon.trol 
of  said  higliway,  wrongfully,  negligently  and  unskillfully 
built  and  permitted  to  be  built,  and  remain  a  certain  bridge 
in  said  highway  between  sections    (fourteen   and  fifteen)    in 

said    township    of    across   and    over   a    certain 

creek,  water-course  or  drain,  of  timbers  and  plank,  so  narrow 
as  to  be  dangerous  to  cross  with  a  team  and  wagon  in  case 
said  team  sliould  deviate  slightly  from  the  center  thereof, 
and  without  any  railing  and  side  truss,  or  anything  whatever 
above  the  plank  flooring  of  said  bridge  to  prevent  a  wagon  or 
team  from  going  off  of  the  side  of  said  bridge,  said  bridge 
being  of  such  a  length,  width  and  height  above  said  water- 
course, creek  or  drain  as  to  be  very  unsafe  and  dangerous  to 
persons  driving  across  the  same ;  by  reason  whereof,  and, 
to  wit,  on  the  day  and  year  aforesaid,  and  at  the  county  afore- 
said, and  while  the  plaintiff  was  driving  across  said  bridge 
with  all  due  care,  skill  and  diligence  in  a  certain  wagon  drawn 
by  a  certain  team  of  horses,  said  horses,  suddenly  took  fright 
and  swerved  to  one  side,  whereby  the  said  team  of  horses  and 
wagon  with  the  plaintiff  were  necessarily  and  unavoidably 
precipitated  from  off  the  side  of  said  bridge  to  and  upon  the 
ground  below,  then  and  there  injuring  and  bruising  the 
plaintiff  and  thereby  breaking  his  left  leg  near  the  hip  joint, 
and  his  left  leg  became  shrunken  and  lame  and  he  became  sick. 


PERSONAL  INJURIES  833 

lame  and  disordered,  and  so  remained  for  a  long  time,  to  wit, 
from  thence  hitherto,  during  all  which  time  he  thereby  suf- 
fered great  pain,  and  was  hindered  from  transacting  his 
business  affairs,  and  also  by  means  of  the  premises,  he  was 
obliged  to  and  did  lay  out  divers  sums  of  money,  amounting 

to,  to  wit,  dollars,  in  and  about  endeavoring  to 

be  healed  of  said  wounds,  bruises,  lameness,  sickness  and 
disorder,  to  the  damage,  etc. 1^2 

(Maryland) 

For  that  the  defendant  is  a  municipal  corporation  and  is 
bound  to  construct,  keep  in  repair  and  regulate  the  public 

highways,  roads,  bridges,  streets  and  alleys  of   

county,  so  as  to  be  safe  for  persons  and  teams  traveling  there- 
on; and  that  one  of  the  public  highways,  roads,  streets  and 

alleys  of  county  aforesaid,  namely   

(which  connects avenue  with )  at 

or  near  the  corner  of    was  imperfectly  and 

defectively  constructed  by  said  defendant  and  was  negligently 
suffered  to  be  and  remain  out  of  repair,  and  unsafe  for  travel, 
in  that  the  defendant  had  or  left  a  steep  and  dangerous 
embankment  or  abutment  over  a  large  culvert  under  said 
highway  without  guards,  railings  or  safe-guards,  to  provide 
against  the  dangers  ensuing  from,  or  which  might  reasonably 
ensue  from  the  ordinary  and  reasonable  use  of  said  highway; 
also,  in  that  the  defendant  allowed  and  permitted  the  sides  of 
said  highway  to  become  grown  up  with  vegetation  and  foliage 
and  bushes  and  vines,  so  that  they  obscured  and  cut  off  the 
view  of  said  culvert  and  steep  and  dangerous  embankment 
or  abutment  or  declivity  from  one  lawfully  passing  on  said 

highway  and  particularly  from  the  said   ,  while 

she  was  then  and  there  lawfully  on  said  highway;  and  it  was 
negligently  suffered  by  the  defendant  to  remain  in  such  con- 
dition ;  in  consequence  of  which,  while  the  said  plaintiff  was 
lawfully  driving  upon  said  highway,  and  while  the  said  plain- 
tiff was  using  due  care,  the  said  plaintiff  was  precipitated  over 
an  embankment  of  said  highway  to  a  depth  of  ten  or  twelve 
feet,  and  was  thereby  hurt  and  injured  and  damaged  exter- 
nally and  internally  and  seriously  and  permanently^  and  two 
of  her  ribs  were  fractured,  and  one  of  her  lungs  was  punc- 
tured, and  she  was  otherwise  seriously  and  permanently  dam- 
aged and  injured. 

And  the  plaintiff  claims  therefore dollars. 

152  Nagle  V.  Wakey,  161  111.  387, 
389  (1896). 


834  ANNOTATED    FORMS   OF   PLEADING    AND   PRACTICE 

1506  Bridge,  railroad;  "traveler,"  Narr.     (111.) 

For  that  whereas  the  phiintiiY  alleges  that  in  the  lifetime 

of  the  said   deceased,  prior  to  and  on,   to   wit, 

the day  of ,  19.  .,  the  deefndant  was 

engaged  in  the  general  business  of  a  structural  iron  con- 
tractor and  as  such  was  then  and  there  constructing  a  certain 

railroad  bridge  across  the   river  from   or  near 

the  town  of ,  in  the  state  of  Illinois,  to  the 

side  of  said  river,  and  it  had  thm  and  there  in  its 

employ,  engaged  in  said  work,  a  large  number  of  men,  among 
them  the  deceased,  who,  the  plaintitY  alleges,  was  then  and 
there  a  structural  iron  worker,  and  as  such  earned,  to  wit^ 
dollars  per  day. 

And  the  plaintiff  further  alleges  that  the  defendant  had 
then  and  there  upon  the  falsework  in  the  state  of  Illinois  used 
in  the  construction  of  said  bridge,  and  at  a  great  distance 
above  the  ground,  a  certain  movable  engine  or  car,  called  a 
"traveler,"  by  means  of  which  the  iron  and  other  material 
used  in  the  construction  of  saifl  bridge  was  raised  up  to  the 
point  where  it  was  to  be  used;  that  at  the  time  and  place 
aforesaid  the  condition  of  the  weather  indicated  that  a  high 
wind  was  likely  and  liable  to  soon  be  blowing,  and  that  in 
the  event  of  such  a  high  wind  blowing,  if  said  "traveler" 
was  not  properly  and  srcurely  fastened,  as  it  was  not  at  that 
time,  it  was  liable  to  and  there  was  grrat  rlanger  of  its  starting 
to  run  along  and  upon  and  falling  from  saitl  falsework,  and 
if  it  should  thus  start  to  run  along  and  upon  and  fall  from 
said  falsework,  it  was  likely  and  liable  to  injure  or  kill  the 
deceased,  or  other  of  the  defendant's  servants;  all  of  which 
facts,  the  plaintiff  alleges,  the  defendant,  through  its  fore- 
man then  and  there  in  charge  of  said  work,  and  who  was  not 
a  fellow-servant  of  deceased,  knew,  or  by  the  exercise  of  ordi- 
nary care  in  that  behalf  would  have  known;  and  that  by  rea- 
son of  the  premises,  it  was  then  and  there  the  duty  of  the 
defendant,  through  its  said  foreman,  to  have  exercised  ordi- 
nary care  toward  so  securing  or  fastening  said  "traveler"  as 
to  prevent  it  from  starting  and  running  upon  and  falling  from 
said  falsework  as  aforesaid:  but  that  the  defendant,  through 
its  said  foreman,  not  regarding  its  said  duty  and  in  utter 
violation  thereof,  then  and  there  negligently  failed  and 
neglected  to  so  fasten  and  secure  said  "traveler,"  and  therein 
wholly  failed  and  made  default,  of  which  failure  and  default 
and  of  the  danger  to  which  he  was  thereby  exposed  the 
deceased,  through  no  Avant  of  ordinary  care  upon  his  part,  did 
not  know;  and  that  as  a  direct  result  and  in  consequence  of  the 
defendant's  said  failure  and  default,  and  of  a  high  wind  which 
plaintiff  alleges  shortly  afterwards  started  to  blow,  said 
"traveler"  then  and  there  started  to  run  upon  and  along  and 
fell  from  said  falsework  a  great  distance  to  the  ground,  and 


PERSONAL  INJURIES  835 

it  then  and  there  struck  and  knocked  deceased,  who,  the  plain- 
tiff alleges,  was  then  and  there  in  the  discharge  of  his  duty  and 
exercising  ordinary  care  and  caution  for  his  own  safety,  work- 
ing upon  or  about  said  falsework,  a  great  distance  above  the 
ground,  and  the  deceased  thereby  then  and  there  sustained 
such  serious  bodily  injuries  that  he  died  as  a  result  thereof 
a  short  time  afterwards. 

And  the  plaintiff  alleges  that  the  deceased  left  him  surviv- 
ing   his  mother,  and brothers  .... 

his  only  next  of  kin,  all  of  whom  are  still  living  and 

to  whose  support  and  otherwise  the  deceased  was  accustomed 
to  and  would  have  continued  to  contribute  large  sums  of 
money,  and  that  by  reason  of  the  death  of  the  deceased  his 

estate  has  been  damaged  to  the  extent  of dollars. 

To  the  damage,  etc. 

1507  Bridge,  repair,  Narr.    (Mich.) 

For  that  whereas,  before  and  at  the  time  of  the  grievances 

hereinafter  complained  of,  the   company, 

defendant  herein,  was  a  corporation  duly  incorporated  and 
doing  business  under  the  laws  of  this  state  providing  for  the 
incorporation  of  plank  road  companies,  and  was  operating  and 

controlling  a  public  highway  from  the  city  of 

through  the  townships  of  and   in 

said  county,  which  was  open  to  and  used  by  the  traveling  pub- 
lic, and  upon  which  the  said  defendant  had  erected  toll  gates 
and  exacted  and  collected  toll  from  persons  traveling  thereon, 
as  authorized  by  the  charter  of  its  incorporation.  And  at  the 
time  hereinafter  complained  of  the  said  plaintiff  was  lawfull}' 
traveling  by  horse  and  buggy  on  said  highway  or  toll  road, 
and  on  a  part  thereof  over  which  the  said  defendant  collected 
toll.  And  it  became  and  was  the  duty  of  the  said  defendant 
to  keep  and  maintain  said  highway  or  toll  road  in  a  good 
condition  of  repair,  and  safe  for  travelers  by  night  as  well 
as  by  day. 

Yet,  the  said  defendant  neglected  its  duty  in  this  respect  and 
did  not  maintain  said  highway  in  good  repair,  but  suffered 
the  same  to  become  and  remain  in  a  bad  condition  and  unsafe 
and  dangerous  to  travelers  thereon.  That  said  highway  or 
toll  road  runs  in  a  northwesterly  direction  from  the  said  city 

of  and  said  defendant  maintains  a  toll  gate 

thereon  near  the  boundary  line  between  the  said  city  of  .... 

and  the  township  of  That  a  short 

distance  northwesterly  along  said  highway  from  said  toll  gate 
a  deep  ravine  crosses  said  highway  or  toll  road  which  is  at 
different  points  from  . .  to  . .  feet  in  depth  below  the  level  of 
said  roadway,  and  the  said  defendant  constructed  a  bridge 

for  use  of  travelers  over  said  ravine  about to 

feet  in  length  on  line  of  travel  and  about 


836  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

feet  wide,  and  erected  railings  on  each  side  of  the 

traveled  way  thereon  to  protect  travelers  from  accidentally, 
either  from  darkness  or  other  causes,  getting  off  the  ends  of 
said  bridge  and  being  precipitated  in  the  deep  ravine,  and  such 
railings  were  necessary  to  make  said  highway  or  toll  road  in 
a  good  condition  of  repair  at  that  point. 

Plaintiff  alleges  that,  for  a  long  time  prior  to  the  accident 
hereinafter  set  forth,  to  wit,  several  years,  the  said  defendant 
had  allowed  said  railings  to  rot  away  and  break  down  to 
topple  over  into  said  ravine,  and  had  allowed  saiil  bridge  to 
remain  without  any  railings  or  protection  of  any  kind  to 
travelers,  and  by  reason  of  the  want  of  said  railings,  and 
the  neglect  of  said  defendant  to  maintain  the  same  the  said 
highway  or  toll  road  became  and  was  allowed  to  remain  in  a 
dangerous   and   unsafe    conditon    for   public   travel,   and   the 

same  was  condemned  by  the  highway  conunission  of   

as  unsafe  and  dangcr-ous  and  notice  thereof  served 

upon  said  defendant,  and  willi  full  knowledge  of  the  danger- 
ous and  unsafe  condition  and  after  receiving  notice  to  repair 
the  same  the  said  defendant  neglected  its  duties  and  failed 
iind  neglected  to  repair  the  same. 

And  on,  to  wit,  the day  of ,  19 . . ,  at 

about  the  hour  of  ....  o'clock  in  the  evening  the  plaintiff  was 
driving  along  said  highway  or  toll  road  coming  to  the  city  of 

,  with  a  horse  and  buggy  and  a  friend  seated  in 

the  buggy  with  him,  and  while  in  the  exercise  of  all  care  on 
his  part  at  all  times,  and  owing  to  the  darkness  of  the  night 
and  the  darkness  of  the  place  where  said  bridge  is  located, 
while  the  wheels  of  plaintift"s  buggy  landed  on  the  first  plank, 
some  of  the  planks  of  said  bridge  further  on  were  considerably 
shorter  and  on  the  wheels  coming  to  the  short  plank  they 
dropped  over  the  east  end  of  the  bridge  and  plaintiff  and  his 
companion  were  precipitated  into  the  ravine  a  depth  of  ui)wards 

of    feet   falling  upon   logs   and   timbers   of  various 

kinds  seriously  and  permanently  injuring  plaintiff.  That 
plaintiff  at  the  time  of  receiving  said  injuries  was  ....  years  of 

age  and  in  good  health,  and  capable  of  earning  $ 

to  $ a  month.    That  by  said  accident  he  suffered 

injury  in  the  muscles,  tendons,  ligaments,  joints  and  blood 
vessels  of  his  arms,  legs  and  all  parts  of  his  body;  that  his 
spine  has  been  seriously  injured,  and  his  whole  nervous  system 
seriously  damaged,  the  serious  effects  thereof  being  indicated 
at  the  present  time  by  loss  of  strength,  great  weakness  in  the 
back  and  spinal  column,  injury  to  the  joint  of  his  right  knee, 
and  the  disordered  condition  of  his  liver,  kidneys  and 
intestines. 

Plaintiff  alleges  that  after  receiving  said  injuries  he  secured 
the  services  of  reputable  physicians,  and  has  been  to  the  hos- 
pital and  submitted  to  operations,  and  he  is  advised  by  his 
physicians  that  his  injuries  are  permanent  and  he  alleges  the 


PERSONAL    INJURIES  837 

fact  to  be  that  he  will  be  crippled  and  permanently  injured 
during  the  balance  of  his  life  and  will  be  prevented  from  earn- 
ing a  livelihood.  That  he  has  suffered  great  pain  and  will  con- 
tinue to  suft'er  great  pain.  That  he  has  been  unable  since  said 
injuries  to  perform  any  kind  of  labor  or  w^ork.     That  he  has 

expended  upwards  of    dollars  in   trying  to   be 

cured  of  said  injuries  and  will  be  compelled  to  spend  large  sums 
of  money  in  the  future. 

And  plaintiff  alleges  that  the  injuries  received  by  him 
was  solely  the  result  of  the  fault  and  neglect  of  the  said 
defendant,  and  by  reason  of  the  premises  he  has  suffered  great 

damages,  to  wit,  in  the  sum  of dollars. 

Therefore  he  brings  suit. 

1508  Bridge,  spanned  partly,  Narr.    (Miss.) 

That  the  defendant  is  a  municipal  corporation,  organized 
and  existing  under  the  laws  of  the  state  of  Mississippi  and 

located  and  situated  within in  said  state. 

That  under  and  by  virtue  of  its  charter,  derived  from  sundry 
acts  of  the  legislature  of  the  state  of  Mississippi  incorporating 
said  municipality,  said  municipal  corporation  is  given  and 
granted  the  right  and  power  to  lay  out,  open,  and  work  and 
maintain  all  necessary  and  proper  streets,  avenues  and 
thoroughfares  therein,  and  by  virtue  of  its  said  charter  is 
given  the  exclusive  control  and  jurisdiction  of  said  streets, 
avenues,  thoroughfares  and  highways  located  within  the  terri- 
torial corporate  limits  thereof.  That  among  other  streets  and 
avenues  located  within  said  municipality,  laid  out,  opened, 
worked  and  maintained  by  it,  pursuant  to  the  authority  afore- 
said, is  what  is  known  as  street,  said  street 

traversing  the portion  of  said  city  and  running 

in  a and  direction.    That  crossing  said  street 

from to at  a  point  between  what  is 

known  as  and  ,  being  inter.secting 

highways  within  said  city  with  the  said street 

is  a  ditch  or  ravine  from feet  deep  and  from 

feet  wide,  and  that  said  municipality  erected  or 

caused  to  be  erected  over  the  same  a  bridge  in  said 

said  bridge  being  constructed  of  wooden  material  and  the 
public  invited  to  pass  thereover  in  the  use  of  said  street. 

That  it  became  and  was  the  duty  of  said  defendant  to 
maintain  said  bridge  and  street  in  a  safe  and  suitable  condi- 
tion and  to  so  work,  control  and  maintain  the  same  as  that 
persons  using  said  street  would  do  so  with  safety.  But  plain- 
tiff avers  that  notwithstanding  its  duty  in  the  premises,  said 
defendant  negligently  failed  in  this:  that  the  bridge  was  so 
constructed  that  the  same  did  not  span  said  ditch  for  the 


838  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

entire  width  of  the  street,  as  it  should  have  done ;  that  tlie  said 
bridge  was  not  provided  with  guard  rails  and  lacked  from 

feet  on  the end  thereof,  of  reaching 

the line  of  said  street,  as  it  should  have  done ; 

that  said  bridge  being  thus  constructed,  left  a  part  of  said 
ditch  or  ravine  exposed  and  unspanned  and  unprotected  in 

said  street,  a  distance  of feet  in  length,  from 

to feet  in  width  and  from 

to  feet  in  depth,  thereby  rendering  the 

same  dangerous  to  pedestrians  and  travelers  lawfully  using 
said  street. 

That  on  or  about  the day  of ,  19 . . , 

the  said  defendant,  through  its  certain  duly  authorized  serv- 
ants, agents  or  employees,  whose  duty  it  was  to  gather  from 
the  streets,  avenues  and  alleys  of  said  city,  trash,  debris  and 
refuse  as  the  same  should  be  found  therein,  remove  the  same 
from  said  city  by  wagons  and  carts,  in  the  performance  of  such 
duties  carelessly  and  negligently  placed  on  the  margin  of  the 

lines  of  said  street,  at  a  point  some to 

feet  west  of  said  ditch  two  piles  of  trash  consisting  of  paper, 
barrel  staves,  parts  of  boxes,  tin  cans,  and  other  like  refuse 
and  thrown  away  material ;  the  said  trash  piles  being  so  placed 
on  the  sides  of  said  street,  as  that  the  same  would  likely  pro- 
duce and  did  produce  fright  in  ordinarily  gentle  animals  being 
driven  by  said  point. 

That  on  the  said day  of ,  19 . . ,  the 

plaintiff  while  driving  an  ordinarily  gentle  and  tractable 
horse  hitched  to  a  buggy  and  while  she  and  her  mother  were 
riding,  in  going  from  the  home  of  a  relative  to  the  home  of 
plaintiff,  on  and  along  said  street,  and  at  a  time  when  the  ani- 
mal she  was  driving  was  under  perfect  control,  and  while 
plaintiff  was  exercisng  due  care  and  caution  in  driving  said 
animal,  when  they  had  reached  a  point  in  said  street  when 
the  buggy  in  which  they  were  riding  was  upon  the  said 
bridge,  the  animal  became  suddenly  and  greatly  frightened  at 
the  trash  piles  hereinbefore  referred  to,  and  became  momen- 
tarily uncontrollable  and  was  caused  thereby  to  back  the  buggy 

in  which  plaintiff  and  her  mother  were  riding,  off  of  the 

end  of  said  bridge,   precipitating  the   same   into   the 

ditch  below.  That  in  so  falling,  the  buggy  and  the  horse 
attached  thereto,  together  with  the  plaintiff  were  thrown  into 
said  ditch  in  a  heap.  That  in  said  fall  the  plaintiff  sustained 
many  physical  bruises  and  wounds  on  both  of  her  arms  and  in 
her  left  leg,  about  the  knee,  ankle  and  thigh  joints,  and  also 
suft'ered  certain  serious  internal  injuries.  That  plaintiff's 
health  was  bad,  and  that  the  shock  sustained  from  the  fright 
of  her  said  experience,  as  also  from  the  additional  violence 
sustained  in  her  body  by  reason  of  her  fall,  completely  pros- 
trated the  plaintiff,  from  which  she  was  caused  to  be  con- 


PERSONAL  INJURIES  839 

fined  to  her  bed  for  many  days,  and  to  require  constant  atten- 
tion and  attendance  of  medical  skill  and  treatment. 

The  plaintiff  avers  that  defendant  was  careless  and  negli- 
gent in  the  construction  of  said  bridge  by  failing  to  build  the 
same  so  that  it  should  span  said  ditch  for  the  entire  width  of 
said  street.  That  it  was  also  negligent  by  failing  to  provide 
guard  rails  at  the  end  of  said  bridge,  and  that  it  was  also 
negligent  by  permitting  said  open  ditch  to  remain  uncovered 
in  any  part  of  said  street,  and  especially  in  the  manner  as 
hereinbefore  set  out.  That  said  defendant  was  negligent  by 
piling,  or  causing  said  piles  of  trash  to  be  placed  on  the  sides 
of  said  street  in  the  manner  hereinbefore  set  out.  And  plain- 
tiff avers  that  by  reason  of  said  negligent  acts  of  said  defend- 
ant, the  plaintiff  was  caused  to  suffer  the  injuries  hereinbefore 
described;  and  that  on  account  of  its  said  negligence  in  the 
premises,  that  the  said  defendant  became  and  is  liable  to  pay 
to  the  plaintiff  all  such  damages  as  she  has  sustained  in  con- 
sequence thereof. 

The  plaintiff  avers  that  by  reason  of  the  physical  pain  and 
mental  anguish  suffered  by  her  in  consequence  of  the  many 
bruises,  wounds  and  injuries  inflicted  upon  her  person  and 
by  reason  of  the  physical  and  serious  sickness  of  plaintiff 
resulting  therefrom  that  her  general  health  has  been  seriously 
and  permanently  impaired  and  that  in  consequence  thereof  and 
in  consequence  of  all  of  said  injuries  that  plaintiff  has  been 
greatly  damaged,  to  wit,  in  the  sum  of dollars. 

1509  Bridge-tender's  neg-ligence,  action 

A  city  is  liable  for  the  negligence  of  its  bridge-tender  who 
manages  its  bridge. ^^^ 

1510  Careless  driving;  minor  injured,  Narr.    (D.  C.) 

The  plaintiff, ,  avers  that,  on,  to  wit,  the  ...... 

day  of ,  the  supreme  court  of  the  District  of  Colum- 
bia holding  a  probate  court  appointed  him  administrator  of 

the  estate  of ,  deceased ;  that  he  has  duly  qualified 

as  such ;  that  on  the day  of ,  letters  of 

administration  were  issued  to  him  by  said  court. 

Plaintiff  further  avers  that  the  defendant,   , 

is  a  corporation  and  was,  on,  to  wit,  the day  of 

,  19. .,  engaged  in  business  in  the  District  of  Colum- 
bia in  transferring  baggage  to  and  from  the  various  depots  in 
said  District  of  Columbia  by  means  of  heavy  wagons  drawn 

1B3  Lehigh  Valley  Transportation 
Co.  V.  Chicago,  237  lU.  581,  582,  583 
(1909). 


840  ANNOTATED   FORMS  OF   PLEADING   AND   PKACTICE 

by  a  horse  or  horses;  that  in  the  course  of  its  said  business, 

the  defendant  transferred  baggage  to  and  from  the 

depot  at  the  corner  of avenue  and 

street  northwest  in  said  district;  that,  on,  to  wit,  the 

day  of ,  19-  •>  the  deceased,  then  an  infant  of . . . . 

years  of  age  was  lawfully  upon street, 

north  near  its  intersection  with street,  west  in 

the  city  of in  the  District  of  Columbia  and  was 

engaged  in  play  with  a  number  of  his  companions  when  a 
heavy  wagon  of  the  defendant  corporation  drawn  by  a  horse 
or  horses,  and  in  charge  of  the  agents,  servants  and  employees 
of  the  said  defendant  corporation,  came  rapidly  from  the  west 

along street,  to  wit street ;  that  it 

then  and  there  became  the  duty  of  the  defendant,  its  agents, 
servants  and  employees  to  use  ordinary  skill  and  care  in  driv- 
ing, managing  and  controlling  the  horse  or  horses  attached  to 
said  wagon,  but  disregarding  said  duty,  said  defendant,  its 
agents,  servants  and  employees  controlled,  managed  and  drove 
the  wagon  and  horse  or  horses  of  the  defendant  so  carelessly, 
negligently  and  unskillfully,  and  were  so  negligent,  inattentive 
and  regardless  of  their  duties,  that  the   said  Avagon  of  the 

defendant  corporation  was  driven  upon  and 

over  the  said ,  now  deceased ;  that  he  was  thereby 

mortally  wounded  and  crushed  and  was  removed  to  the 

hospital  and  died  within  a  few  hours;  that  his  death 

was  in  consequence  of  the  violence,  wounds  and  bruises  so 

received  by  him,  the  said and  the  result  of  being 

run  over  by  the  wagon  of  the  defendant  corporation,  through 
the  negligence,  carelessness,  mismanagement,  unskillfulness 
and  lack  of  attention  of  the  agents  of  the  defendant  who  were 

in  charge  of  the  same ;  and  that  the  said on, 

to  wit,  the day  of ,  19. .,  in  the  city  of 

,  in  the  District  of  Columbia  then  and  there 

died. 

And  the  plaintiff  avers  that  the  death  of  the  said 

decedent  of  the  said  plaintiff,  was  under  such  circumstances  and 

in  such  manner  that  if  death  had  not  resulted,  the  said 

would,  as  an  infant,  by  his  next  friend,  have  had  a  right 

of  action  against  the  defendant  corporation  on  account  of  the 
carelessness,  negligence,  unskillfulness,  mismanagement  and 
lack  of  attention  of  the  servants  of  said  defendant  corporation 
for  the  injury  done  to  him  at  the  time,  place  and  in  the  man- 
ner indicated;  but  that  as  death  resulted  to  the  said , 

the  said  decedent  of  said  plaintiff  by  reason  of  the  said  negli- 
gence, unskillfulness,  recklessness,  carelessness  and  inattention 
of  the  servants  of  the  said  defendant  corporation,  the  said 
plaintiff,  as  his  administrator,  became  entitled  to  sue  for  the 
damages  sustained  by  the  next  of  kin  of  the  deceased,  through 
the  wrongful  act  of  said  defendant  corporation,  its  servants 
and  agents,  under  and  by  virtue  of  section  1301  of  the  Code  of 


PERSONAL   INJURIES 


841 


the  District  of  Columbia;  that  said  decedent  left  surviving  him 
as  his  next  of  kin,  his  father,  the  plaintiff,   and  an  infant 

brother ;  that  the  said was  a  strong  healthy  child 

and  that  his  father  lost  divers  great  gams  and  prohts  which 

he  might,  could  and  would  have  gained  from  the  said 

in  his  life  time,  but  for  his  untimely  decease  on  account 
of  the  negligence,  carelessness,  and  wrongful  acts  of  said 
defendant  corporation  and  its  servants ;  and  that  the  next  ot 

kin  of  said  deceased  were  damaged  to  the  extent  of 

dollars.    Wherefore,  etc. 

(Illinois) 

For  that  whereas  the  defendant, ,  a  corporation, 

before  and  at  the  time  of  the  committing  of  the  grievances 
hereinafter  mentioned,  was  in  the  brewing  business,  and  as 
such  was  the  owner  of  a  certain  vehicle  or  brewery  wagon 
bv  it  used  and  employed  in  hauling,  carrying  and  delivering 
beer  to  divers  customers  of  the  said  defendant  at  divers  places 

in  the  city  of  ,  county  and  state  aforesaid,  and 

being  such  owner  and  in  control  of  the  said  vehicle  or  brewery 
wagon,  or  other  conveyance,  it,  the  defendant,  on,  to  wit,  the 

.;.....  day  of ,l...,at  .. m  the 

county  and  state  aforesaid,  by  and  through  the  negligence 
and  carelessness  of  the  said  defendant  by  its  servant  who  was 
then  and  there  at  said  time  driving  said  conveyance  with  a 
team  of  horses  of  the  said  defendant  thereto  attached,  along 
and  upon  a  certain  street  or  public  highway  m  the  city  ot 
.  .,  county  and  state  aforesaid,  known  as,  to  wit, 

street,  between  two  other  public  streets  in  the 

gjYv  of ,  and  state  aforesaid  known  as,  to  wit, 

^        '■ and streets,  then  and  there  so  neg- 

iiffentiy*  wilfully  and  maliciously  managed,  and  drove  said 
team  with  said  wagon  or  vehicle  attached  that  K,  the  deceased, 
who  was  a  mere  boy  of  the  age  of,  to  wit,  .....  years,  while 
on  his  way  to  school  and  while  crossing  the  said  highway 

known  as,  to  wit,   street  at  the  place  aforesaid 

with  all  due  care  and  diligence,  as  he  had  the  right  to  do,  \^as 
bv  the  negligence  and  carelessness  of  the  defendant,  by  its  then 
servant,  run  into  with  the  vehicle  and  team  of  horses  afore- 
said struck,  thrown  and  knocked  down  with  great  force  and 
violence  to  and  upon  the  ground  there  and  passing  over  his 
body,  and  was  thereby  then  and  there  killed. 

2  That  it  also  then  and  there  became  and  was  the  duty  of 
the"  said  defendant  to  employ  competent,  proper  and  capable 
servants  in  the  carrying  on  of  its  business  and  particularly  in 
the  driving  of  said  team  and  wagon  as  aforesaid  Yet,  the  de- 
fendant, not  regarding  its  duty  in  that  behalf,  did  not  employ 
careful,  competent,  proper  and  suitable  persons  in  its  business 
as  aforesaid,  but  carelessly,  wilfully  and  negligently  employed 


842  ANNOTATED  FORMS  OP   PLEADING   AND   PRACTICE 

and  permitted  an  incompetent  person  to  drive  one  of  its  said 
wagons  and  teams  on  the  day  aforesaid  at  the  place  aforesaid, 
and  while  the  said  K,  who  was  a  boy  of  the  age  of,  to  wit, 
years,  who,  while  using  all  due  care  and  dili- 
gence for  his  own  safety  and  while  on  his  way  to  school,  in 

attempting  to  cross  the  said  street  known  as,  to  wit, 

street,  was  by  reason  of  the  carelessness  and  negligence  of 
the  said  defendant,  by  its  said  servant  in  that  behalf,  then  and 
there  run  into  and  struck  with  great  force  and  violence  by  the 
said  vehicle  or  wagon  so  driven  by  the  servant  of  the  said 
defendant,  and  thereby  the  said  K  was  then  and  there  thrown 
with  geat  force  and  violence  to  and  upon  the  ground  there, 
and  was  thereby  then  and  there  killed. 

And  the  plaintiff  avers  that  the  said  K  left  him  surviving 
J  K,  his  father,  R  K,  his  mother,  S  K,  and  F  K,  his  brothers, 
and  A  K,  his  sister,  and  next  of  kin,  who  are  still  living  and 
who  were  deprived  of  his  services  and  their  support  and  educa- 
tion, to  the  damage  of  the  plaintiff  as  administrator  as  afore- 
said of dollars,  and  therefore  he  brings  his  suit, 

etc. 

And  the  plaintiff  brings  into  court  here  the  letters  of  admin- 
istration to  him  granted  by  tb.e  probate  court  of  the  county 
aforesaid,  which  gives  sufficient  evidence  to  the  court  here  of 
the  grant  of  administration  of  the  said  estate  to  the  plaintiff, 
etc. 


Administrator  of  the 

estate  of   

deceased. 


h 

For  that  whereas  heretofore,  on,  to  wit, ,  19. ., 

at  the  city  of ,  to  wit,  in  the  said  county  of , 

the  defendant  was  the  owner  of,  to  wit,  two  certain  horses  and 
a  certain  wagon ;  and  whereas  the  defendant  then  and  there 
had  placed  said  horses  with  said  wagon  in  charge  of  a  certain 
other  person  then  and  there  being  a  servant  of  defendant,  which 
said  person  as  such  servant,  while  acting  within  the  scope  of  his 
said  employment  and  in  the  transaction  of  defendant's  busi- 
ness, was  then  and  there  negligently  and  unlawfully  driving 
said  horses  and  wagon  along  a  certain  public  street,  to  wit, 

street,  and  within  the  corporate  limits  of  the 

said  city  of at  a  much  greater  rate  of  speed  than 

six  miles  an  hour,  to  wit,  at  the  unlawful  ratj  of  fifteen  miles 
an  hour,  contrary  to  the  form  and  terms  of  a  certain  ordinance 

of  the  said  city  of then  and  still  in  force  and  legal 

effect,  wherein  and  whereby  it  was  then  and  there  provided, 
among  other  things,  substantially  in  the  words  following,  to 
wit:     "No  person  shall  ride  or  drive  any  horse  or  horses  or 


PERSONAL  INJURIES  843 

other  animals  in  the  city  of with  greater  speed 

than  at  the  rate  of  six  miles  an  hour  under  a  penalty  of  not 
more  than  ten  dollars  for  each  offense  to  be  recovered  from  the 
owner  or  driver  thereof  severally  and  respectively;"  and  there- 
in the  defendant,  by  its  said  servant  wholly  failed  and  made 
default;  and  thereby,  by  means  of  the  said  several  premises 
and  in  consequence  of  which  said  default  and  by  reason  of  the 
negligence  and  carelessness  of  the  defendant  by  its  said  serv- 
ant, the  said  horses  and  wagon  or  some  one  or  several  thereof 
then  and  there  ran  and  struck  with  great  force  and  violence 
upon  and  against  the  plaintiff,  then  being  an  infant  of  tender 
years,  to  wit,  of  the  age  of  six  years,  or  thereabout,  and  while 
plaintiff  then  was  upon  said  public  street  at  or  near  the  inter- 
section of  a  certain  other  public  street,  to  wit, 

avenue,  as  he  lawfull}^  might,  and  while  he  then  and  there  was 
in  the  exercise  of  as  much  care  and  caution  as  was  usual  and 
could  be  reasonably  expected  of  an  infant  of  his  age,  intelli- 
gence and  knowledge  under  the  same  or  similar  circumstances, 
then  and  there  as  aforesaid,  and  thereby  injured  the  plaintiff 
both  internally  and  externally,  whereby  he  was  rendered  per- 
manently sick,  sore,  wounded,  crippled  and  disordered,  and  re- 
ceived a  severe  nervous  shock  and  concussion  of  the  brain  and 
spine,  and  thereby  the  plaintiff's  internal  organs  and  his  liver, 
kidneys,  bladder  and  heart  were  greatly  and  permanently  af- 
fected and  rendered  incapable  of  properly  performing  their 
normal  functions  and  were  rendered  diseased,  and  thereby,  to 
wit,  seven  of  the  plaintiff's  ribs  were  broken  and  fractured  and 
dislocated,  and  divers  other  of  the  plaintiff's  ribs  were  thereby 
greatly  and  permanently  injured,  and  thereby  also,  by  reason  of 
the  premises,  divers  of  the  other  bones  of  the  plaintiff's  body 
and  limbs  were  dislocated,  strained,  sprained,  broken  and  other- 
wise injured,  and  the  plaintiff  suffered  from  sprains,  lacera- 
tions, tearing  and  ruptures  of  divers  other  parts  of  his  body ; 
and  the  plaintiff  thereby  suffered  greatly  from  loss  of  blood, 
and  thereby  the  plaintiff's  body  was  rendered  subject  to  divers 
SM^ellings,  and  the  plaintiff  was  rendered  subject  to  spitting  of 
blood  and  passing  of  blood  in  his  urine,  and  thereby  his  private 
parts  and  organs  of  reproduction  were  greatly  and  permanently 
impaired  and  injured,  and  the  plaintiff  will  be  rendered  unable 
to  work  or  earn  a  living,  and  will  be  put  to  great  expense  for 
medicines,  nursing  and  medical  attendance  in  the  future ;  also 
by  reason  of  the  premises,  the  plaintiff  says  that  he  has  been 
and  is  otherwise  greatly  and  permanently  injured  and  damaged, 
to  wit,  at  said  county.    Wherefore,  etc. 

1511  Careless  running  of  street  cax;  laborer  injured,  NaJT. 
(Mich.) 

For  that,  at  the  present  time  and  on,  to  wit, 

19 . . ,  and  for  a  long  time,  to  wit, months, 


844  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

prior  thereto,  said  defendant,  the company, 

owned  and  operated  a  certain  street  railway  along  and  upon 

certain  streets  in  the  city  of ,  county  of 

and  state  of  Michigan,  and  more  particularly  along  and  upon 

the  streets  in  the  city  of ,  known  as 

avenue  and street  from  the  intersection  of  said 

street  with street  to  the  point  where 

said avenue  joins  said street,  and 

from  thence  west  on  said r  avenue  to,  to  wit,  .... 

street,  upon  which  said  railway  said  defendant  was 

then  and  there  controlling  and  operating  divers  electric  motor 
street  cars. 

On  said  date,  to  wit, ,  19 .  . ,  plain- 
tiff, a  man  of  the  age  of,  to  wit, years,  was  in  the 

employ  of  the  city  of ,  as  a  street  sweeper,  and  at 

about o'clock  in  the of  said  day, 

was  working  on  the  track  of  said  defendant  at  a  point  on  .... 

avenue,  a  distance  of,  to  wit, feet  west  of 

the  point  where  said avenue  intersects 

street.  Plaintiff  was  working  on  said  defendant's  track  as 
aforesaid,  with  his  back  towards  defendant's  car  which  was 
approaching  from  the  west,  as  hereinafter  set  forth,  for  a  period 
of,  to  wit,  ....  minutes,  and  w^as  in  plain  sight  of  the  motor- 
man  of  said  car  as  it  approached  plaintiff,  for  a  distance  of, 

to  wit,   feet.     Defendant 's  car,  number,  to  wit, 

,  then  and  there  approached  j)laintiff  from  the 

west  at  a  speed  of,  to  wit miles  per  hour.    There 

were  then  and  there  upon avenue  and 

street,  which  were  then  and  there  paved  with  brick,  many 
wagons  and  other  vehicles  which  made  such  a  noise  as  to 
drown  the  sound  of  said  car  as  it  approached  plaintiff. 

It  thereupon  became  and  was  then  and  there  the  duty  of  said 
defendant  to  run  its  said  car  in  a  careful  and  cautious  manner 
with  due  regard  to  the  rights  of  plaintiff,  who  was  lawfully  upon 
the  track ; 

And  it  became  and  was  then  and  there  the  duty  of  the 
defendant  to  run  its  said  car  at  a  reasonably  safe  rate  of  speed ; 

And  it  became  and  w^as  then  and  there  the  duty  of  the  defend- 
ant by  its  motorman,  to  keep  a  sharp  lookout  ahead  of  said 
car,  so  that  when  it  became,  or  ought  to  have  become,  apparent 
to  said  motorman  that  plaintiff  was  on  the  track  of  said  defend- 
ant in  a  position  of  danger,  and  did  not  know  of  the  approach- 
ing car  and  from  plaintiff's  actions  that  he  did  not  intend  to 
remove  himself  from  the  track  before  said  car  would  reach  hira, 
said  motorman  could  control  and  stop  his  car  at  any  time  to 
avert  an  injury ; 

And  it  became  and  was  then  and  there  the  duty  of  said 
defendant,  by  its  motorman,  when  said  motorman  saw,  or 
ought  to  have  seen,  plaintiff  on  the  track  in  a  position  of 
danger,  to  check  the  speed  of  said  car  and  bring  it  under 


PERSONAL   INJURIES  845 

such  control  that  it  could  be  brought  to  a  stop  before  reaching 
the  point  where  plaintiff  was  on  the  track  in  a  position  of 
danger,  as  aforesaid; 

And  it  became  and  was  then  and  there  the  duty  of  said 
defendant  to  give  plaintiff  warning  by  the  sounding  of  a 
gong,  or  otherwise,  of  the  approach  of  said  car  to  the  point 
where  plaintiff  was  on  the  track,  as  aforesaid,  and  to  continue 
such  warning  until  plaintiff  should  remove  himself  from  the 
path  of  said  approaching  car; 

And  it  became  and  was  the  duty  of  defendant  by  its  motor- 
man,  when  said  motorman  saw,  or  ought  to  have  seen,  that 
plaintiff  was  on  the  track  in  a  position  of  danger  and  that 
plaintiff  did  not  intend  to  get  off  the  track,  to  use  every  effort 
to  stt)p  said  car ; 

And  especially  did  the  said  defendant  owe  to  the  said  plain- 
tiff the  duties  above  set  forth,  in  view  and  by  reason  of  the  fact 
that  there  were  then  and  there  many  heavy  wagons  and  other 
vehicles,  the  noise  of  which  made  it  impossible  for  plaintiff  to 
hear  the  sound  of  said  car  as  it  approached,  and  that  there 
were  then  and  there  many  other  pedestrians  and  workmen  on 
the  street. 

After  said  car  struck  plaintiff,  throwing  him  to  the  pave- 
ment in  such  a  position  that  his  legs  were  under  the  fender  of 
said  car,  it  became  and  was  then  and  there  the  duty  of  said 
defendant  to  immediately  stop  said  car  and  to  give  aid,  assist- 
ance and  attention  to  plaintiff'  and  to  hold  said  car  stationary, 
and  to  render  assistance  in  extricating  plaintiff  from  under 
the  fender  of  said  car. 

Yet  the  said  defendant  then  and  there  wantonly,  recklessly 
and  wilfully  disregarded  its  duties  as  above  set  forth,  in  the 
following  particulars,  to  wit: 

Defendant  failed  to  run  its  said  car  in  a  careful  and  cautious 
manner  with  due  regard  to  the  rights  of  plaintiff. 

Defendant  did  not  then  and  there  run  its  said  car  at  a  reason- 
ably safe  rate  of  speed,  but  on  the  contrary,  ran  said  car  at  an 
unsafe  and  unreasonable  rate  of  speed  when  approaching  plain- 
tiff', and  especially  was  the  speed  of  said  car  unsafe  and  unrea- 
sonable in  view  and  by  reason  of  the  fact  that  there  were  then 
and  there  many  wagons  and  other  vehicles,  the  noise  of  which 
drowned  the  sound  of  said  car  as  it  approached  plaintiff,  and 
also  many  other  pedestrians  and  workmen. 

And  defendant  further  wantonly,  recklessly  and  wilfully  dis- 
regarded its  duties,  in  that  its  motorman  who  was  operating 
said  car  did  not  keep  a  sharp  lookout  ahead  of  said  car  as  it 
was  approaching  plaintiff,  as  aforesaid,  and  did  not  have  said 
car  under  control  so  that  it  could  be  stopped  in  time  to  avert 
an  injury  to  plaintiff,  when  it  became,  or  ought  to  have  become, 
apparent  to  said  motorman  that  plaintiff  was  in  a  position  of 
danger  and  did  not  know  of  the  approach  of  said  car,  and 
said  motorman  did  not  have  said  car  under  control  so  that  it 


846  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

could  be  stopped  in  time  to  avert  an  injury  to  plaintiff  when  it 
became  or  ought  to  have  become,  api)arent  to  said  motorman, 
from  the  actions  of  plaintiff,  that  he,  the  said  plaintiff,  did  not 
intend  to  remove  himself  from  the  path  of  said  approaching 
car  before  said  car  would  reach  him. 

Defendant  further  wantonly,  recklessly  and  wilfully  disre- 
garded its  duties  by  not  checking  the  speed  of  said  car  and 
bringing  it  under  control,  so  that  it  could  be  stopped  before 
reaching  plaintiff,  when  the  motorman  of  said  car  saw,  or 
ought  to  have  seen,  plaintiff  on  defendant's  track  in  a  position 
of  danger. 

Defendant  further  wantonly,  recklessly  and  wilfully  disre- 
garded its  duty  by  failing  to  give  plaintiff  warning  by  the 
sounding  of  a  gong  or  otherwise,  when  said  car  was  approach- 
ing plaintiff  as  he  was  working  on  the  track  of  said  defendant 
with  his  back  to  said  car  and  in  plain  sight  of  the  motorman  of 
said  car,  as  aforesaid. 

Defendant  further  wantonly,  recklessly  and  wilfully  disre- 
garded its  duty  by  failing  to  use  every  effort  to  stop  said  car 
when  the  motorman  saw  or  ought  to  have  seen  that  plaintiff 
was  on  the  track  in  a  position  of  danger  and  that  plaintiff  did 
not  intend  to  get  off  the  track. 

Defendant  further  wantonly,  recklessly  and  wilfully  disre- 
garded its  duty  by  continuing  to  run  its  said  car  forward  a 

distance  of,  to  wit, feet,  after  said  car  had  struck 

plaintiff  and  knocked  him  to  the  pavement,  as  aforesaid,  drag- 
ging plaintiff  for  said  distance  along  and  over  the  rough 
pavement. 

Defendant  further  wantonly,  recklessly  and  wilfully  disre- 
garded its  duties  by  not  holding  said  car  stationary  after  it  had 
stopped  running  forward,  as  aforesaid,  and  by  reversing  said 
car  and  running  the  same  backward  a  distance   of,  to  wit, 

feet,  again  dragging  plaintiff  for  said  distance, 

along  and  over  the  rough  pavement. 

Then  and  there  and  thereby,  and  by  reason  of  the  premises 
and  while  plaintiff  was  in  the  exercise  of  due  care,  defendant 
ran  and  propelled  its  said  car  against,  over  and  upon  plaintiff, 
dragging  him  forward  along  and  over  the  rough  pavement,  a 

distance  of,  to  wit, feet,  and  then  as  said  car  was 

reversed  again  dragging  plaintiff  along  and  over  the  rough 
pavement,  a  distance  of,  to  wit, feet. 

And  then  and  there  and  thereby,  and  by  reason  of  the  run- 
ning and  propelling  of  said  car  against,  over  and  upon  plaintiff, 
and  by  reason  of  the  dragging  of  plaintiff  forward  a  distance 

of,  to  wit, feet,  and  again  backward,  a  distance  of, 

to  wit, feet,  plaintiff  was  thrown  violently  to  the 

pavement,  his  right  collar  bone  was  fractured,  three  or  more 
large  wounds  were  made  in  his  head,  and  said  wounds  were  of 
such  a  serious  nature  that  it  became  necessary  for  them  to  be 
sewed  up  by  a  surgeon,  his  body,  arms  and  legs  were  wounded, 


PERSONAL  INJURIES  847 

bruised  and  lacerated  and  the  drums  of  his  ears  were  injured 

so  that  ever  since ,  19.  .,  he  has  been  gradually 

growing  deaf;  plaintiff  was  also  injured  internally,  and  as  a 
result  of  the  shock,  his  nervous  system  was  wrecked,  all  of 
which  injuries  are  permanent,  and  from  the  effect  of  which 
plaintiff  has  suffered  great  mental  and  bodily  pain  as  a  result 
of  such  injuries,  and  will  continue  to  suffer  great  mental  and 
bodily  pain,  as  a  result  of  such  injuries,  during  the  rest  of  his 
natural  life,  and  he  has  become  crippled,  lame  and  disabled,  and 
will  be  crippled,  lamed  and  disabled  during  the  rest  of  his 
natural  life;  and  plaintiff,  except  for  the  injuries  aforesaid, 
would  have  been  capable  of  earning  large  sums  of  money  in  the 

future,  to  wit, ($ )  dollars,  per  annum, 

but  by  reason  of  the  premises,  he  has  become  incapacitated  from 
doing  any  labor  and  will  continue  to  be  so  incapacitated  from 
doing  any  labor  during  the  rest  of  his  natural  life,  and  he  has 
been  permanently  deprived  of  the  ability  to  earn  a  livelihood 
for  himself  and  family;  and  plaintiff  has  been  compelled  to 
expend  and  become  liable  for  large  sums  of  money,  to  wit, 
: ($ )  dollars,  for  medical  attendance,  nurs- 
ing and  care,  and  for  medicines,  and  will  in  the  future  be  re- 
quired to  expend  and  become  liable  for  large  sums  of  money 
therefor,  on  account  of  the  injuries  aforesaid. 

And  plaintiff  was  without  negligence  with  respect  to  the 
cause  of  his  said  injuries. 

All  to  plaintiff's  damage  of ($ ) 

dollars,  and  therefore  he  brings  suit. 

1512  Careless  ninning  of  street  car;  pedestrian  injured,  Narr. 

For  that  whereas,  heretofore,  on,  to  wit,  the day 

^^  •••••• '  19-  M  the  defendant, ,  was  pos- 
sessed of  and  owned,  operated,  controlled  and  used  a  certain 
street  railway  propelled  by  means  of  an  underground  cable 
over,  along  and  upon  a  certain  street  known  as 

avenue,  in  said  city  of and  county  *and 'state 

atoresaid,  and  the  defendant  on  said,  to  wit,  the 

^^y  ^^ 19. .,  was  possessed  of  and  using  and 

operating  a  certain  train  of  cars  and  the  said  train  of  cars 
was  then  and  there  under  the  care  and  management  of 
divers  then  servants  of  the  defendant,  who  were  then 
and  there,  to  wit,  on  said  day,  drivng  and  propelling 
said  tram  of  cars  upon  and  along  the  said  street,  known  as 

avenue ;  and  while  the  said  plaintiff, 

who  was  then  and  there,  on,  to  wit,  said day  of 

,  19  •  • ,  with  all  due  care  and  diligence  for  his  own 


848  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

safety  walking  along  and  upon  the  said  street 

avenue,  in  said  city  of ,  wliieli  said  street  was  then 

and  there  a  public  highway,  tlie  dcftMidant  then  and  there  by 
its  servants  so  carelessly  and  inii)ropcrly  managed  said  train  of 
ears  that  by  and  through  the  negligence  and  improper  conduct 

of  the  defendant  the  said   was  then  and  tliere 

thrown  with  great  force  and  violence  upon  the  ground  by  said 
train  of  cars  and  was  then  and  there  struck  by  said  train  of 
cars  and  greatly  bruised  and  injured. 

And  plaintiff  avers  that  by  reason  of  the  premises,  he 
then  and  there  became  and  was  sick,  sore,  lame  and  disordered, 
and  divers  of  his  bones  became  broken  and  injured  and  divers 
of  his  muscles,  tendons  and  sinews  became  wrenched,  bruised, 
injured  and  contused,  and  the  said  plaintiff  suffered  a  severe 
and  permanent  weakening,  disorder,  and  displacement,  and 
thereby  the  plaintiff'  suffered  great  pain  and  anguish  and  Avill 
in  the  future  during  ills  natural  life  thus  suffer,  and  thereby 
the  plaintiff  became  gi-eatly  and  permanently  lame  and  crip- 
pled and  thereby  his,  the  i)laintifi"s,  viscera  and  his  internal 
organs  were  greatly  and  permanently  disordered,  weakened 
and  injured,  and  thereby  the  plaintiff'  became  necessarily  in- 
debted for  a  large  sum  of  money  in  and  about  endeavoring  to 
be  cured  of  his  various  wounds  and  ailments  occasioned  as 
aforesaid,  and  his  ability  to  earn  a  living  and  pursue  his 
regular  and  ordinary  vocation  was  and  has  been  greatly  and 
permanently  injured.  Wherefore,  etc. 

COLLISIONS 

1513  Automobile  and  street  car,  Narr.  (111.) 

For  that  whereas  on,  to  wit,  the ,  19.  .,  at, 

to  wit,  the  city  of ,  county  and  state  aforesaid,  the 

said  ,  defendant,  was  in  the  business  of  keeping 

for  hire  and  hiring  to  the  public  certain  automobiles,  and  he 
then  and  there  had  possession,  charge  and  control  of  certain 
automobiles  and  had  in  his  employment  a  certain  chauffeur 
or  driver  to  operate  said  automobiles,  and  then  and  there  the 
said did  for  a  certain  compensation  hire  a  cer- 
tain one  of  said  automobiles,  and  the  chauffeur  as  his  said 
servant  to  operate  the  same,  to  the  plaintiff'  and  other  persons, 
or  to  certain  other  persons  for  her,  and  then  and  there  the 

said directed  his  said  servant,  the  said  chauffeur 

or  driver,  to  operate  the  said  automobile,  and  then  and  there 
while  the  plaintiff',  with  other  persons,  were  rightfully  and  law- 
fully riding  in  the  said  automobile,  and  while  the  plaintiff  was 
riding  therein,  with  all  due  care  and  caution  for  her  own  safety, 
and  while  the  same  was  being  operated  by  the  said  employee  of 
the  said as  his  servant,  the  said  servant  so  negli- 
gently and  carelessly  ran,  managed,  controlled  and  operated 


PERSONAL  INJURIES  849 

the  said  automobile  upon  a  certain  public  street  in  said  city, 
that  then  and  there  and  thereby,  by  and  through  and  by  reason 
of  the  said  negligence,  as  aforesaid,  of  the  said  chauffeur  or 
driver,  the  said  automobile  then  and  there  ran  against  and 
struck  with  great  force  and  violence  a  certain  street  car,  and 
then  and  there  and  thereby  the  plaintiff  was  thrown  violently 
from  the  said  automobile  to  and  upon  the  ground,  whereby  she 
then  and  there  sustained  severe  external  and  internal  injuries 
to  her  body,  arras,  legs  and  head,  all  of  which  injuries  are  per- 
manent, and  thereby  she  sustained  serious  internal  injuries  to 
her  lungs,  heart,  liver,  kidneys,  ovaries,  uterus,  stomach  and 
other  organs,  and  the  said  injuries  have  resulted  in  permanent 
nervous  disorders;  and  thereby  plaintiff's  spine  and  back  were 
greatly  injured,  all  of  which  injuries  are  permanent.  And  by 
reason  of  said  injuries  plaintiff  became  and  was  sick,  sore,  lame 
and  disordered,  and  so  remained  for  a  long  space  of  time,  to 
wit,  from  thence,  hitherto,  and  so  she  will  remain  permanently. 
And  by  reason  of  the  said  injuries  plaintiff'  has  paid  out  and 

become  liable  to  pay  divers  large  sums  of  money,  to  wit, 

dollars  in  and  about  endeavoring  to  be  cured  thereof; 

and  by  reason  of  said  injuries  plaintiff  has  been  unable  to  fol- 
low her  usual  occupation  and  has  lost  thereby  divers  large 

sums  of  money,  to  wit, dollars  per  month  since 

the  said  injuries. 

All  to  the  damage  of  the  plaintiff  in  the  sum  of 

dollars.    Wherefore,  she  brings  this  suit. 

1514  Down  grade  collision,  Narr.  (Mich.) 

For  that  whereas,  on,  to  wit,  the day  of , 

19.  .,  and  for  a  long  time  prior  thereto,  the  said  defendant  was 
and  still  is,  a  corporation  organized  and  doing  business  under 
the  laws  of  the  state  of  Michigan,  and  was  and  still  is  the 
owner  and  proprietor  of  a  street  railway  system  in  the  city 

of ,  Michigan,  and  an  interurban  electric  railway 

between and ._ ,  Michigan,  and  was 

operating  upon  the  streets  of  said  city  of ,  to  wit, 

avenue  and avenue,  a  line  of  street 

ears  for  the  carriage  of  passengers  for  hire,  and  said  defend- 
ant was  then  and  there  a  common  carrier  of  passengers  for 
hire. 

And  for  that  whereas,  heretofore,  on  the day  of 

,  19. .,  the  said  plaintiff,  at  the  special  instance 

and  invitation  of  the  defendant,  did  enter  upon  and  into  one 
of  its  cars  for  the  purpose  of  becoming  a  passenger  thereon,  and 
for  the  purpose  of  being  conveyed  for  hire  and  reward  to  said 
defendant  as  a  passenger  in  its  said  car  from  the  east  end  of 

its  track  on avenue,  in  said  city  to  a  point  on  its 

line  on avenue  south,  and  the  said  defendant 


850  ANNOTATED   FORMS   OP   PLEADING   AND   PRACTICE 

then  and  there  received  said  plaintiff  as  such  passenger  to  so 
be  carried  as  aforesaid. 

And  thereupon  it  became  and  was  the  duty  of  said  defendant, 
with  due  and  proper  care  to  convey  and  carry  said  plaintiff 
from  said  first  mentioned  point  on  its  said  line  to  said  st'cond 
mentioned  point;  and  particularly  it  became  and  was  its  duty 
to  provide  reliable,  skillful  and  careful  employees,  who  would 
run  and  operate  said  car  in  a  careful,  proper  and  safe  manner ; 
and  it  became  and  was  its  duty  to  see  to  it  that  said  car  was 
run  and  operated  in  a  careful  and  safe  manner  and  with  rea- 
sonable and  proper  regard  for  the  safety  of  said  plaintiff;  and 
it  became  and  was  the  duty  of  the  said  motorman  on  said  car 
to  remain  at  all  times  at  his  proper  and  usual  station  on  the 
said  car  when  the  same  was  in  motion  in  order  that  he  might 
properly  control  the  same  and  reverse  the  current  by  which  the 
said  car  was  run  and  operate  the  brakes  as  occasion  might 
demand. 

Yet,  the  said  defendant,  not  regarding  its  duties  in  that 
behalf,  did  not  use  due  and  proper  care  to  convey  and  carry 
said  plaintiff"  from  the  said  first  mentioned  point  on  its  said 
line  to  said  second  point ;  and  did  not  provide  reliable,  skillful 
and  careful  employees  who  would  run  and  operate  said  car 
in  a  careful,  proper  and  safe  manner  and  with  reasonable  and 
proper  regard  for  the  safety  of  said  plaintiff;  and  the  motor- 
man  on  said  car  did  not  remain  at  all  times  at  the  proper  and 
usual  station  on  the  said  car  when  the  same  was  in  motion; 
but  the  said  motorman  unnecessarily,  negligently,  carelessly 
and  without  due  and  proper  regard  for  the  safety  of  plaintiff, 
abandoned  his  proper  and  usual  station  on  said  car,  and  when 
the  same  was  in  motion  and  running  at  a  high  rate  of  speed 
took  hold  of  the  handle  or  support  on  the  side  of  the  vestibule 
of  said  car,  intended  for  the  use  of  passengers  and  employees 
in  getting  on  and  off  said  car,  and  attempted  to  swing  himself 
out  of  said  vestibule  and  around  and  in  front  thereof  with- 
out either  stopping  said  car  or  providing  anyone  to  take  his 
place  at  his  proper  and  usual  station  and  without  in  any  way 
providing  for  the  control  of  said  car  and  while  so  doing  fell 
from  said  car  to  the  ground,  and  said  car  was  thereby  left 
uncontrolled,  and  with  no  one  to  check  or  reverse  the  current 
by  which  said  car  was  propelled  or  apply  the  brakes  as  occa- 
sion might  demand,  or  in  any  way  to  control  said  car. 

2.  And  it  also  became  and  was  the  duty  of  said  defendant  to 
provide  reliable,  skillful  and  careful  employees  who  would 
run  and  operate  said  car  in  a  careful,  proper  and  safe  manner 
and  to  see  to  it  that  said  car  was  run  and  operated  in  a  care- 
ful, proper  and  safe  manner  and  with  reasonable  and  proper 
regard  for  the  safety  of  said  plaintiff ;  and  it  became  and  was 
the  duty  of  the  conductor  of  said  car  to  exercise  all  due  care 
and  caution  in  the  operation  and  conduct  of  said  car,  and  to 
Bee  that  the  same  was  at  all  times  kept  under  proper  and  due 


PERSONAL  INJURIES  851 

control,  and  if  for  any  reason  the  motorman  failed  to  remain 
at  his  proper  and  usual  station  on  said  ear,  and  to  maintain  at 
all  times  proper  watchfulness  and  control  over  the  same,  and 
if  said  car  should  for  any  reason  not  be  properly  operated  and 
controlled  by  the  motorman,  to  use  all  means  within  his  power 
to  bring  said  car  within  control,  and  to  see  that  it  was  safely 
and  properly  operated. 

Yet,  the  said  defendant,  not  regarding  its  duties  in  that 
behalf,  did  not  use  due  and  proper  care  to  convey  and  carry 
said  plaintiff  as  aforesaid,  and  to  provide  skillful,  reliable 
and  careful  employees  who  would  run  and  operate  said  car 
in  a  careful,  proper  and  safe  manner;  and  it  did  not  see  to  it 
that  said  car  was  run  and  operated  in  a  careful,  proper  and 
safe  manner,  and  with  reasonable  and  proper  regard  for  the 
safety  of  said  plaintiff;  and  the  conductor  of  said  car,  the 
motorman  as  aforesaid  having  abandoned  his  usual  and  proper 
station  on  said  car  and  having  failed  to  keep  and  maintain  said 
car  under  proper  control,  negligently,  carelessly  and  unskill- 
fully,  did  not  do  all  that  was  within  his  power  to  keep  and  bring 
said  car  under  proper  control ;  and,  although  said  car,  as  afore- 
said, in  passing  down  a  grade  in avenue,  attained 

a  high  and  dangerous  rate  of  speed,  the  said  conductor  did  not 
reverse  or  in  any  way  check  or  break  the  current  by  which  said 
car  was  propelled  and  did  not  set  the  brakes  upon  the  rear 
of  said  car  as  he  might  and  ought  to  have  done,  and  said  car 
was  thereby  left  uncontrolled. 

3.  And  particularly  because  it  was  the  duty  of  said  defend- 
ant to  provide  a  safe  and  suitable  car  in  which  to  carry  plain- 
tiff. 

Yet,  the  said  defendant,  not  regarding  its  duty  in  that  behalf, 
did  not  use  due  and  proper  care  to  convey  and  carry  said 
plaintiff  as  aforesaid,  but  negligently  and  carelessly  provided 
a  car  that  was  unsafe  and  dangerous  in  this,  to  wit,  that  one 
of  the  handles  or  supports  provided  for  the  purpose  of  being 
taken  hold  of  by  passengers  in  getting  on  and  off  said  car,  and 
by  employees  in  the  operation  of  said  car  to  support  them- 
selves, was  weak,  broken  and  unsafe  so  that  when  the  said  de- 
fendant's motorman,  whose  duty  it  was  to  control  the  speed  of 
said  car,  and  to  apply  the  brakes  as  occasion  might  demand,  took 
hold  of  said  handle  or  support,  it  gave  way  and  caused  said 
motorman  to  fall  oft"  from  said  car  to  the  ground,  and  said  car 
was  thereby  left  uncontrolled,  and  with  no  one  to  check  or 
reverse  the  current  by  which  said  car  was  propelled  or  apply 
the  brakes  as  occasion  might  demand,  or  in  any  way  to  control 
said  car;  and  by  reason  thereof  said  car  in  going  down  grade 

in  said  avenue  attained  a  high  and  dangerous 

rate  of  speed  and  ran  off  the  track  and  ran  violently  into  a 

house  standing  by  the  side  of avenue,  and  threw 

plaintiff  Avith  great  force  and  violence  against  the  back  and 
end  of  one  of  the  seats  in  said  car  so  that  said  plaintiff,  with- 


852  ANNOTATED   TOUMS  OF  TLEADING    AND   PRACTICE 

out  any  fault  or  neglect  on  his  part,  was  greatly  hurt,  bruised, 
and  injured,  and  made  sore,  sick,  lame  and  disordered,  and  had 
three  ribs  broken,  and  his  liver  and  spleen  injured,  displaced 
and  caused  to  become  inflamed  and  enlarged,  and  his  stomaeh 
and  bowels  bruised,  injured,  torn  and  lacerated,  from  all  of 
which  he  has  ever  since  sulTered  and  still  sutVers  great  bodily 
and  mental  pain  and  anxiety,  and  has  ever  since  been  unable 
to  follow  his  usual  occupation  or  employment  or  any  occupa- 
tion or  employment  whatever,  whereby  he  has  been  deprived 
of  great  gains  which  he  would  otherwise  have  had,  and  has 
been  put  to  great  expense  for  surgical  and  medical  attendance, 
nursing  and  medicines,  and  has  been  permanently  injured,  his 
eonstitution  weakened,  and  his  health  imi)aired,  so  that  he 
will  in  the  future  be  deprived  of  great  gains,  and  will  suffer 
great  bodily  and  mental  pain,  and  be  further  put  to  great 
expense   for   medical    and    surgical    attendance,    nursing    and 

medicines,  to  his  damage  of dollars,  and 

therefore  he  brings  suit. 

1515  Elevated  trains,  Narr.  (111.) 

For  that  whereas,  heretofore,  on,  to  wit,  on  the  ....  day  of 

,   19..,   the   defendant    was   a   corporation    and   duly 

organized,  existing  and  doing  business  under  and  by  virtue  of 
the  laws  of  the  state  of  Illinois,  and  was  then  and  there  the 
owner  of,  in  possession,  control  and  management  of  a  certain 
line  of  elevated  railroad  in  the  county  aforesaid,  which  ran 
and  extended  over,  along  and  upon  a  certain  public  street 
and  highway  in  said  county  known  as  and  called  L  street,  which 
said  L  street  then  and  there  intersected  and  abutted  upon 
divers  other  public  streets  and  highways,  and  particularly 
then  and  there  intersected  and  abutted  upon  a  certain  other 
public  street  and  highway,  known  as  and  called  W  avenue; 
upon  which  said  tracks  the  defendant  then  and  there 
placed,  moved,  operated  and  ran  divers  cars  and  trains  of 
cars,  propelled,  moved  and  driven  by  means  of  electricity, 
and  in  addition  to  said  line  of  elevated  railroad  in  said  L  street, 
the  defendant  then  and  there  by  license,  contract,  lease,  agree- 
ment, permission,  consent  and  sufferance  of  a  certain  other 
corporation  organized,  existing  and  doing  business  under  and 

by  virtue  of  the  laws  of  the  state  of ,  known  as 

and  called  U,  then  and  there  placed,  moved,  operated,  man- 
aged and  drove  its  said  cars  and  trains  of  cars  on  divers  other 
elevated  tracks  belonging  to  and  used  by  said  U  upon  other  of 
said  public  streets  and  highways,  more  particularly  said  W 
avenue,  and  a  certain  other  public  street  or  highway,  known 
as  and  called  V  street,  in  said  county,  said  L  street  and  said  V 
street  then  and  there  each  running  and  extending  through  said 
city  and  county  in  an  easterly  and  westerly   direction  and 


PERSONAL   INJURIES  853 

lying  parallel  to  each  other,  and  the  said  W  avenue  then  and 
there  running  and  extending  in  a  northerly  and  southerly 
direction  through  a  portion  of  said  city,  and  intersecting, 
crossing  or  abutting  upon  said  L  street  and  said  V  street  at 
nearly  right  angles;  and  the  said  defendant  was  then  and 
there  engaged  in  the  business  of  carrying  passengers  to  and 
from  certain  stations  upon  said  line  of  its  tracks  to  certain 
other  stations  upon  its  said  line  of  tracks,  and  to  certain  sta- 
tions upon  the  line  of  tracks  owned  b}'-  and  in  possession  of 
said  U.  All  of  which  the  said  defendant  did  for  hire  and 
reward,  and  was  then  and  there  a  common  carrier  of  persons 
for  hire. 

And  the  plaintiff  avers  that  upon,  to  wit,  the  said day 

of    ,    19..,   at   a   point   on   said   defendant's  line   of 

elevated  railroad,  to  wit,  at  a  certain  station  known  as  C  ave- 
nue, in  A,  in  the  said  county,  the  defendant  received  the  plain- 
tiff into  one  of  its  said  cars  which  was  then  and  there  one 
of  a  train  of  cars  managed,  controlled,  operated  and  possessed 
by  the  defendant,  as  aforesaid,  and  for  reward  and  compensa- 
tion then  and  there  paid  by  the  plaintiff  to  the  defendant,  the 
plaintiff  was  to  be  safely  carried  and  convej^ed  as  a  passenger 
along  and  upon  the  defendant's  said  line  of  tracks  to  the  tracks 
of  the  said  U,  and  thence  along  and  upon  the  tracks  of  said 
U  to  his  destination  at  a  station  of  defendant  in  the  vicinity 
of  the  intersection  of  said  V  street  with  a  certain  other  public 
street  or  highway  running  northerly  and  southerly  through 
said  city,  and  known  as  and  called  D  street. 

And  the  plaintiff"  avers  that  by  reason  of  the  premises  it 
then  and  there  became  and  was  the  duty  of  the  defendant  to 
use  the  highest  degree  of  care,  caution  and  prudence  to  safely 
carry  and  convey  the  plaintiff  in  its  said  ears  along  and  upon 
said  lilies  of  elevated  track  to  his  said  place  of  destination  and 
there  deliver  the  plaintiff  uninjured,  and  to  that  end  and  for 
that  purpose  to  exercise  and  use  the  highest  degree  of  care  and 
caution  in  the  control,  operation  and  management  of  the  train 
in  which  the  plaintiff'  was  riding  as  such  passenger,  as  also 
in  the  control,  operation  and  management  of  other  trains  upon 
the  same  tracks  used  by  the  defendant  and  which  might  be 
running  and  operating  in  close  proximity  to  the  train  in  which 
the  said  plaintiff'  was  riding  as  a  passenger  as  aforesaid. 

But  therein  the  said  defendant  wholly  failed  and  made 
default,  and  contrary  to  its  duty  in  that  behalf,  and  when  the 
said  car  in  which  the  plaintiff  was  riding,  as  aforesaid,  as  a 
passenger,  had  arrived  at  and  in  the  vicinity  of  where  said  L 
street  is  intersected  by  a  certain  other  public  street  and  high- 
way in  said  city  of ,  kno^vn  as  and  called  A  street, 

in  said  county,  the  defendant  so  carelessly,  negligently  and 
imprudently  operated,  managed  and  governed  the  cars  and 
trains  which  were  then  and  there  operating  and  running  upon 


854  ANNOTATED   FORMS  OF   PLEADING    AND   PRACTICE 

said  track,  that  the  defendant  by  its  servants  and  agents  in 
that  behalf  ran,  drove  and  moved  a  certain  other  car  or  train 
of  cars  then  and  there  upon  the  said  track  in  close  proximity 
to  the  train  and  car  in  which  the  plaintiff  was  riding  as  afore- 
said, so  that  by  reason  of  the  carelessness  and  negligence  of  the 
defendant  and  of  the  premises,  one  of  defendant's  said  trains 
so  operated  and  controlled  by  it,  as  aforesaid,  then  and  there 
collided  with  great  force  and  violence  with,  against  and  upon 
said  car  and  the  train  upon  which  the  i)laintiir  was  riding  as 
aforesaid;  whereby  and  by  means  whereof  the  plaintiff,  who 
was  then  and  there  without  fault  or  negligence  on  his  part  and 
with  all  due  care  and  caution  for  his  own  safety  riding  as  such 
passenger,  was  then  and  there  violently  stnick  and  hurt,  and 
was  then  and  there  violently  thrown  from  his  seat  in  said  car  in 
which  he  was  riding  as  aforesaid,  to,  upon  and  against  the  seats, 
parts,  sides  and  floor  of  the  said  car,  and  the  seats,  parts, 
and  sides  of  said  car  were  then  and  there  with  great  force  and 
violence  hurled  and  thrown  upon  the  plaintiff;  by  means  where- 
of he  was  greatly  hurt,  bruised,  contused  and  wounded  in  and 
about  his  head,  body,  limbs,  spine  aiul  spinal  cord;  and  the 
plaintiff'  then  and  there  suff'ercd  severe  internal  and  external 
injuries  and  lesions,  and  severe  shock  to  his  nervous  system, 
resulting  in  the  impairment  of  his  nervous  organization  and 
mental  faculties,  whereby  he  has  become  and  is  greatly 
deranged,  both  mentally  and  physically,  and  has  been  unable 
to  sleep  or  rest,  and  has  suffered  and  will  continue  to  suffer 
mental  and  physical  prostration  and  distress,  and  divers  bones, 
tendons  and  ligaments  were  then  and  there  strained,  sprained, 
bruised  and  contused,  and  he  became  and  was  by  reason  thereof 
sick,  sore,  lame  and  disordered  and  so  remained  for  a  long 
space  of  time,  to  wit,  from  thence  hitherto,  which  injuries  are 
and  will  be  permanent. 

And  the  plaintiff'  further  avers  that  by  reason  of  all  said 
premises,  he  has  expended,  paid  out  and  become  liable  for 

divers  large  sums  of  money,  to  wit,  the  sum  of 

dollars  for  doctor's  bills,  medicine,  medical  and  surgical  attend- 
ance and  nursing,  in  and  about  endeavoring  to  cure  himself 
and  to  be  cured  of  his  wounds,  bruises  and  injuries  occasioned 
as  aforesaid. 

And  the  plaintiff  further  avers  that  prior  to  the  time  of 
his  said  injury  he  was   a   strong,   healthy   and  robust  man, 

engaged  in  the  business  and  occupation  of  a ,  and 

in  and  about  such  business,  and  by  means  thereof,  he  was  able 
to  and  did  earn  large  sums  of  money,  to  wit,  the  sum  of 

dollars  a  month,  but  that  by  reason  of  the  injuries 

received  as  aforesaid  and  of  the  premises  the  plaintiff  has 
become  and  is  unable  to  longer  perform  and  carry  on  his  said 
business.    To  the  damage,  etc. 


PERSONAL  INJURIES  855 

1516  street  car  and  buggy,  Narr.  (111.) 

For  that  whereas,  on,  to  wit, ,  19. .,  on  a  certain 

public  highway  known  as street  in  the  city  of 

county,  aforesaid,  near  a  certain  other 

street  called street,  the  plaintiff  was  rightfully 

riding  in  a  certain  vehicle  called  a  Ijuggy  then  and  there  drawn 
and  propelled  by  a  certain  horse  upon  and  along  said  public 

highway,  to  wit,  . . . ; street,  and  the  defendant  was 

then  and  there  possessed  of  and  had  control  of,  by  its  then  ser- 
vants, of  a  certain  street  car  which  was  then  being  drawn  west- 
ward on street  by  a  team  of  horses,  said  horses  being 

then  in  the  possession  and  under  the  care  of  the  said  defendant 
by  its  said  servants,  who  were  then  and  there  driving  it  along 
and  upon  certain  street  car  tracks  then  and  there  in  the  posses- 
sion of  the  defendant,  along  said  street  as  aforesaid ;  and  while 
the  plaintiff  with  all  due  care  and  diligence  was  rightfully 

riding  then  and  there  in  said  buggy  on  said    

street  and  across  said  street  car  tracks,  the  defendant  then  and 
there  by  its  said  servants  so  carelessly,  and  improperly  drove 
and  managed  the  said  horses  and  said  street  car  that  by  and 
through  the  negligence  and  improper  conduct  of  the  defendant 
by  its  servants  in  that  behalf  the  said  street  car  and  horses 
then  and  there  ran  and  struck  with  great  force  and  violence 
upon  and  against  the  plaintiff's  buggy  in  which  he  was  then 
and  there  riding;  and  thereby  the  plaintiff  was  then  and  there, 
with  groat  force  and  violence,  thrown  from  said  buggy  to 
and  upon  the  ground  there;  and  was  thereby  then  and  there 
greatly  bruised,  hurt  and  wounded,  his  left  foot  and  toes  badly 
crushed  and  lacerated,  the  flesh  of  his  left  leg  torn  and 
lacerated  up  to  the  knee,  his  right  leg  wrenched,  bruised  and 
wounded ;  his  back  wrenched,  strained  and  bruised,  and  his 
nervous  system  severely  shocked  throughout  his  body;  and 
he  became  and  was  sick,  sore,  lame  and  disordered,  and  so 
remained  for  a  long  space  of  time,  to  wit,  from  thence  hitherto ; 
during  all  of  which  time  he,  the  plaintiff,  suffered  great  pain 
and  was  hindered  and  prevented  from  attending  to  and 
transacting  his  affairs  and  business;  and  he,  the  plaintiff,  was 
permanently  injured  and  damaged,  and  the  said  horse,  which 
he  then  owned,  was  badly  bruised,  hurt  and  frightened  and  the 
harness  which  he  then  and  there  owned  torn  and  shattered, 
and  his  said  buggy  wrenched  and  damaged ;  and  by  means  of 
the  premises  the  plaintiff  was  forced  to  and  did  then  and  there 

lay  out  divers  sums   of  money,   amounting  to    

dollars  in  and  about  endeavoring  to  be  cured  of  his  said 
wounds,  hurts  and  bruises  occasioned  as  aforesaid;  and  the 
plaintiff  was  compelled  for  a  long  time,  to  wit,  for  the  space 
of to  abandon  and  neglect  his  business  as  a  sur- 
geon and  medical  practioner,  by  means  whereof  he  suffered  a 
great  loss  of  his  income,  to  wit,  a  loss  amounting  to 


856  ANNOTATED   FORMS   OF   PLELVDfNG   AND   PKACTICE 

dollars;  and  also,  by  the  running  and  striking  of  the  said 
horses  and  street  car  upon  and  against  the  plaintiff's  buggy 
as  aforesaid,  at  the  time  and  place  in  that  behalf  aforesaid, 

the  said  buggv  l)eing  then  of  the  value  of dollars,  and 

whereof  the  plaintiff  was  then  and  there  lawfully  possessed, 
was  crushed,  weakened  and  broken,  and  the  plaintiff  was  com- 
pelled to  pay  out  a  large  sum  of  money,  to  wit,  the  sum  of 

dollars  in  and  about  repairing  the  same,  and  th.- 

harness  upon  said  horse,  whereof  the  plaintiff  was  then  and 
there  lawfully  possessed,  was  torn  and  shattered,  and  the 
plaintiff  was  compelled  to  pay  out  a  large  amount  of  money, 

to  wit, dollars  in  and  about  repairng  the  same; 

and  the  horse,  whereof  the  plaintiff*  was  then  and  there  law- 
fully   possessed,    was   seriously    and    permanently    injured    so 

that  he  depreciated  in  value  to  the  amount  of   

dollars.    ^Vherefore,  ete.^'^* 

1517  Street  car  and  fire  engrine,  Narr.  (Ill ) 

For  that  in  the  lifetime  of  the  said  15,  to  wit,  on  the   .... 

day  of ,  19.  .,  in  the  city  of ,  which  city 

is  wholly  within county,  in  the  state  of  Illinois, 

he   was   a    member    of    the    fire    department    of   said    city    of 

,  a  city  organized  and  existing  under  the  laws 

of  said  state  and  having  sueh  a  department,  and  as  a  part  of 
his  duty  as  sueh  member,  was  riding  to  a  fire  on  a  certain  fire 
engine  then  and  there  being  drawn  by  certain   horses,  upon 

and  along street,  a  public  highway,  in  said  city, 

at  a  certain  crossing  of  said  street,  and avenue, 

another  public  highway  in  said  city,  and  the  defendant  was 
then  and  there  a  street  railroad  company,  and  also  known 
as  a  street  railway,  and  as  one  of  the  city  railway  companies 
and  was  then  and  tiiere  possessed  of,  using  and  operating  a  cer- 
tain street  railroad  extending  througli  a  part  of  said  city,  and 
upon  and  along  said  avenue  over  and  across  said  street,  and 
on  said  avenue  for  a  long  distance  thereon  on  both  sides  of 
the  said  crossing,  and  in  said  city. 

And  defendant  also  then  and  there  possessed  a  certain  elec- 
tric motor  car  used  by  it  to  carry  passengers  along  and  o.i 
said  avenue  by  means  of  an  electric  curnnt  then  and  there 
supplied  by  it  through  an  overhead  trolley  wire  there  to  an 
electric  motor  upon  and  a  part  of  said  ear,  which  said  car  and 
the  track  on  which  same  was,  were  then  and  there  under  the 
care  and  management  of  divers  then  servants  of  the  defendant, 
which  said  car  was  then  and  there  running  upon  and  along 
the  said  avenue  near  and  towards  the  said  crossing. 

And  thereupon  it  became  and  was  the  duty  of  the  defendant 

154  Chicago  West  Division  Ry.  Co. 
V.  Ingraham,  131  111.  659  (1890). 


PERSONAL   INJURIES  857 

at  said  city,  on,  to  wit,  said   ....    day  of   ,  19..,  to 

run  and  operate  said  car  at  a  moderate  and  reasonable  rate  of 
speed  in  approaching  and  passing  over  said  crossing  at  night. 
Yet,  not  regarding  said  duty,  but  in  violation  thereof,  and 
Avhile  the  said  B,  with  all  due  care  and  diligence,  was  then  and 
there  riding  on  said  fire  engine  on  and  along  said  street  and 
across  the  said  street  railroad  and  said  avenue,  the  said 
defendant  then  and  there,  by  its  servants,  so  negligently,  care- 
lessly and  improperly  ran  said  car  at  an  immoderate,  unreason- 
able and  excessively  fast  and  dangerous  rate  of  speed  at  night 
while  approaching  and  passing  said  thronged  crossing;  and 
failed  to  use  the  care  and  prudence  in  that  respect  which  the 
safety  of  those  whom  said  servants  in  good  reason  should  know 
are  likely  to  be  imperilled  by  said  car  being  so  run,  demands 
should  be  exercised ;  and  did  not,  in  approaching  said  crossing, 
so  regulate  the  speed  of  said  car  that  collisions  with  other 
persons  having  the  right  to  cross  said  avenue  at  said  crossing 
could,  by  the  exercise  of  ordinary  care,  be  avoided;  and  said 
car  was  then  and  there  run  at  such  a  great  rate  of  speed  in 
approaching  and  passing  said  crossing  as  to  interfere  with 
the  customary  use  of  said  avenue  and  crossing  by  others  of 
the  public  with  safety. 

2.  And  thereupon  it  also  became  and  was  the  duty  of  the 

defendant  at  said  city,  on,  to  wit,  said day  of , 

19.  .,  carefully  and  properly  to  cause  said  car  to  be  run  under 
control  in  apjjroaching  and  passing  over  said  crossing  of  said 
street  and  avenue,  in  this,  to  run  said  car  so  that  the  motor- 
man  operating  said  car  is  able  to  keep  control  of  it,  so  as  to 
stop  it  within  a  reasonable  distance  upon  the  appearance  of 
danger  to  others;  and  to  so  lessen  the  speed  of  said  car  while 
same  was  approaching  said  crossing,  that  said  car  would  be 
under  control  while  pa.ssing  over  on  said  crossing. 

Yet,  not  regarding  said  duty,  but  in  violation  thereof,  and 
while  the  said  B,  with  all  due  care  and  diligence,  was  then 
and  there  riding  on  said  fire  engine  on  and  along  said  street 
and  across  the  said  street  railroad  and  said  avenue,  the  said 
defendant  then  and  there  by  its  servants  so  carelessly,  neg- 
ligently and  improperly  caused  said  car  to  be  run  not  under 
control  in  approaching  and  passing  over  said  crossing,  and 
it  did  not  run  said  car  so  that  the  motorman  operating  the 
same  would  be  or  was  able  to  keep  control  of  it,  so  as  to  stop 
it  within  a  reasonable  distance  upon  the  appearance  of  danger 
to  others;  and  it  did  not  so  lessen  the  speed  of  said  car  while 
same  was  approaching  said  crossing  that  said  car  would  be 
under  control  while  passing  over  or  on  said  crossing. 

3.  And  thereupon  it  also  became  and  was  the  duty  of  the 

defendant  at  said  city,  on,  to  wit,  said day  of , 

19.  ..  to  carefully  and  properly  drive  and  manage  said  car  by 
causing  a  bell  or  gong  on  said  car  to  be  rung  or  sounded  just 
before  said  car  ran  upon  and  on  to  said  crossing,  and  to  keep 


858  ANNOTATED   FORMS   OF   PLEADING    AND    PRACTICE 

said  bell  or  gong  constantly  sounded  while  said  car  approached 
said  crossing. 

Yet,  not  regarding  said  duty,  but  in  violation  thereof,  and 
while  the  said  li,  with  all  due  care  and  diligence,  was  then  and 
there  riding  on  said  lire  engine  on  and  along  said  street  and 
across  the  said  street  railroad  and  said  avenue,  the  saitl  defend- 
ant then  and  there  by  its  servants  so  negligently,  carelessly  and 
improperly  drove  and  managed  said  car  at  night,  and  while  it 
was  dark,  without  causing  a  bell  or  gong  on  said  car  to  be 
rung  or  sounded  just  before  said  car  was  run  ui)on  and  on  to 
said  crossing;  and  it  did  not  kccj)  said  bell  or  gong  constantly 
sounded  while  said  car  ai)proaehed  said  crossing. 

4.     And  thereupon  it  also  became  and  was  the  duty  of  the 

defendant  at  said  city,  on,  to  wit,  said  ....  day  of 

19. .,  to  carefully  and  properly  have  its  servants  then  and  there 
in  charge  and  management  of  said  car,  while  the  same  was 
approaching  said  cro.ssing,  watch  and  look  out  for  the  approach 
or  passage  of  fire  engines  upon  said  street  over  said  cro.ssing 
to  avoid  running  said  car  into  the  said  engine,  and  to  have 
said  servants  then  and  there  look  to  see  if  said  crossing  was 
and  woulil  be  clear  for  the  passage  of  said  car;  and  emlt-avor 
to  ascertain  if  the  track  ui)on  said  crossing  was  and  would  be 
clear  for  the  passage  of  said  car,  and  to  exercise  greater  watch- 
fulness and  give  more  attention  as  to  whether  the  track  ahead 
of  said  car  was  clear,  while  said  car  was  approaching  and  pass- 
ing said  crossing,  than  at  other  places  on  the  route  of  said  car. 

Yet,  not  regarding  said  duty,  but  in  violation  thereof,  and 
while  the  said  B,  with  all  due  care  and  diligence,  was  then  and 
there  ritling  on  said  fire  engine  on  and  along  said  street  ami 
across  the  said  street  railroad  and  said  avenue,  the  said  defend- 
ant then  and  there  by  its  servants  then  and  there  in  charge 
and  management  of  said  car,  while  the  same  was  approaching 
said  crossing,  so  negligently,  carelessly  and  improperly  failed 
to  watch  and  look  out  for  the  approach  or  passage  of  fire 
engines  upon  said  street  over  said  crossing;  and  it  failed  to 
look  to  see  if  said  crossing  was  and  would  be  then  and  there 
clear  for  the  passage  of  said  car;  and  it  failed  to  try  to  ascer- 
tain if  said  track  over  said  crossing  was  and  would  be  clear 
for  the  passage  of  said  car;  and  it  did  not  exercise  any  greater 
watchfulness  nor  give  more  attention  as  to  whether  the  track 
ahead  of  said  car  was  clear,  while  said  car  was  approaching 
and  passing  said  crossing,  than  at  other  places  on  the  route 
of  said  car. 

By  reason  of  the  several  breaches  of  duty  hereinbefore  set 
forth,  and  by  and  through  the  negligence,  mismanagement, 
improper  conduct  and  unskillfulness  of  the  defendant,  by  its 
said  servants  in  that  behalf,  and  the  matters  aforesaid,  the 
said  car  then  and  there  ran  into  and  struck  with  great  force 
and  violence  upon  and  against  the  said  fire  engine,  and  thereby 
the  said  B  was  then  and  there  thrown  with  great  force  and 


PERSONAL   INJURIES  859 

violence  from  said  fire  engine  to  and  upon  the  ground  and 
pavement  there,  and  was  thereby  then  and  there  killed.  (Add 
last  two  paragraphs  of  Section  1495) 

1518  Street  cax  and  wagon,  Narr.  (111.) 

For  that  whereas,  the  said  defendant,  B,  a  corpo- 
ration organized  and  doing  business  under  and  by  virtue  of 
the  laws  of  the  state  of  Illinois,  is  and  was  on,  to  wit,  the  .... 

day  of ,  19. .,  engaged  in  maintaining  and  operating 

certain  street  car  lines  in  the  city  of ,  county  of 

,  and  state  of  Illinois,  and  did  on,  to  wit, , 

so  maintain  and  operate  a  certain  street  car  line  upon  and  along 

a  certain  street  in  said  city  of aforesaid,  to  wit, 

upon   and   along    ,    at   or   near   the   intersection 

of  said with  other  streets,  to  wit, 

in  said  city  of and  county  aforesaid,  and  did  then 

and  there  run  or  cause  to  be  run  at  frecpent  intervals  upon 
and  along  said  street  car  line,  certain  cars  belonging  to  and 
owned  by  said  defendant.  .,  H.  And  whereas,  it  then  and  there 
became  and  was  the  duty  of  said  defendant.  .,  B,  to  operate  and 

run  its  said  cars  upon   and   along  said    at   or 

near  the  intersection  of  said with , 

in  the  city  of aforesaid  in  a  careful  and  cautious 

manner,  so  as  to  avoid  running  into  and  colliding  with  vehicles, 
wagons  or  persons  then  and  there  being  and  passing  along  and 
upon  said  street  and  upon  the  tracks  of  the  said  defendant.  . 
B  aforesaid : 

And  whereas,  C,  a  corporation  organized  and  doing  busi- 
ness under  and  by  virtue  of  the  laws  of  the  state  of , 

was,  on,  to  wit,  the day  of ,  engaged  in  the 

business  for  which  said  corporation  was  organized  in  the  city 
of ,  and  county  aforesaid  and  as  part  of  said  busi- 
ness, said  defendant..,  C,  was,  on,  to  wit,  the    ....    day  of 

,  driving  or  causing  to  be  driven  upon  and  along 

said ,  at  or  near  the  intersection  of  said 

with in  the  city  of ,  aforesaid,  a  cer- 
tain vehicle  or  wagon  belonging  to  and  owned  and  controlled 
by  said  defendant. .,  C;  and  it  then  and  there  became  and  was 
the  duty  of  said  defendant.  .,  C,  to  drive  or  cause  to  be  driven 

its  said  vehicle  or  wagon  upon  and  along  said , 

at  or  near  the  intersection  of  said with 

aforesaid,  with  all  due  care  and  caution  so  as  not  to  run  into 
or  collide  with  other  vehicles  or  wagons  then  and  there  being 
driven  upon  and  along  said  streets  aforesaid  and  upon  and 
along  the  tracks  of  the  defendant. .,  B. 

And  whereas,  also,  heretofore,  to  wit.  on ,  the 

defendant,.,  D,  was  engaged  in  the  general  expressing  and 
carrying  business  for  hire  in  the  city  of afore- 
said. 


860  ANNOTATED    FOKMS    OF    I'LEADlMi    AND    I'KACTICE 

And    whereas,    the    i)lainfifT,    on    to    wit,    the    ....    day    of 

,  w.  . .  .  desirous  of  being  conveyed  from  the 

.  . .  .,  situated  on  said  ,  at  or  near  the  intersec- 
tion of  said ,  with ,  in  the  city  of 

,    aforesaid,    to   the    ,    situated    on 

,  at  or  near  the  intersection  of  said 

with ,  in  the  city  of 

aforesaid,  and  the  defendant.  .,  1),  for  a  valuable  consideration 
then  and  there  undertook  and  agreed  with  the  said  plaintilf  to 
safely  carry  and  convey  .  .h.  .,  the  plaintiff,  to  .  ,h.  .  place  of 
destination  aforesaid. 

And  whereas,  the  plaintiff  at  the  special  instance  and 
recjuest  of  said  defendant..,  D,  then  and  there  entered  into 
the  said  vehicle  or  wagon  of  defendant..,  D,  for  the  purpose 
of  being  conveyed  to  his  place  of  destination  as  aforesaid; 
it  then  and  there  became  and  was  the  duty  of  the  defendant.  ., 
D,  to  exercise  all  due  care  and  caution  in  driving  and  num- 
aging  ..h..  said  vehicle  or  wagon  as  aforesaid,  while  the 
plaintiff  was  so  riding  in  the  vehicle  or  wagon  of  said  defend- 
ant. .,  I),  so  as  not  to  run  into  or  collide  with  the  said  vehicle 
or  wagon  of  the  defendant..,  C,  or  with  the  said  car  of  the 
defendant..,  H,  then  and  there  being  and  passing  along  and 

ui)on  said ,  at  or  near  the  intersection  of  said , 

with   ,  in  saitl  city  of   ,  and  county 

aforesaid. 

Nevertheless,  the  said  defendants,  B,  by  its  servants  and 
employees,  C,  by  its  servants  and  employees  and  said  I),  wholly 
disregarding  their  said  duties  in  that  behalf  did  so  negligently 
and  carelessly  operate,  manage  and  vlii\e  their  respective  cars, 
vehicles  and  wagons  upon  and  along  the  tracks  of  the  defend- 
ant, B,  and  upon  and  along  said ,  at  or  near  the 

intersection  of  said   ,  with   ,  in  the 

city  of ,  aforesaid,  that  the  said  car  of  the  defend- 
ant. .,  B,  the  said  vehicle  or  wagon  of  the  defendant.  .,  C,  and 
the  said  vehicle  or  wagon  of  the  defendant.  .,  D,  without  any 
fault  on  the  part  of  the  i)laintift'  and  while  plaintiff  was 
exercising  all  due  care  and  caution  on  ins  part,  did  then  and 
there  with  great  force  and  violence  run  into  and  collide,  each 
with  the  other,   to   wit,  at  or  near  the   intersection  of  said 

,  with ,  in  the  city  of , 

aforesaid,  on,  to  wit,  the  day  aforesaid,  and  the  plaintiff 
was  then  and  there  and  thereby  thrown  with  great  force  and 
violence  down  to  and  upon  the  ground  and  was  then  and 
there  and  thereby  greatly  bruised,  scratched,  wounded,  injured 
and  maimed  upon  and  about  his  said  person,  and  then  and 
there  and  afterwards,  to  wit,  from  thence  hitherto  became, 
was  and  is  sick,  sore,  lame  and  disordered  in  and  about 
his  said  person,  and  has  expended  divers  large  sums  of 
money  in  endeavoring  to  be  healed  of  his  said  injuries 
aforesaid,  to  wit,  the  sum  of  $ ,  to  the  damage  of 


PERSONAL   INJURIES  861 

the  plaintiff  in  the  sum  of  $ ,  and  therefore  he 

brings  this  suit. 

& 

For  that  whereas  the  plaintiff,  on,  to  wit, >  19  •  •  > 

was  employed  by  A  in  the  capacity  of,  to  wit,  a  driver  or 
teamster,  and  was  earning,  while  so  employed,  the  sum  of,  to 

wit, dollars  per  day,  and  was  lawfully  driving  a 

two-horse  wagon,  to  wit,  south  on   street  at 

or  near  the  intersection  of street,  in  the  city  of 

,    county,   And  the 

defendant  was  then  and  there  possessed  of  and  owned,  con- 
trolled and  operated  a  certain  street  railway,  to  wit,  an  elec- 
tric street  railway,  and  then  and  there  ran,  controlled  and 
operated  the  same  in  a  northerly  and  southerly  direction  on 

said street,  Avhereon,  to  wit,  motor  cars  in  charge 

of  divers  servants  of  defendant  were  then  and  there  propelled 
and  operated  by,  to  wit,  electricity  along  and  upon  said  rail- 
way in  a  northerly  and  southerly  direction;  and  the  plaintiff 
avers  that  it  was  then  and  there  the  duty  of  the  defendant, 
by  its  servants,  to  propel,  operate,  manage  and  control  its  said 

cars  on  said street  with  due  regard  and  care  for 

the  safety  of  other  vehicles  and  pedestrians,  rightfully  upon 
said  street  there;  yet,  the  defendant,  by  its  servants,  wholly 
regardless  of  its  duty  in  that  behalf,  and  while  the  plaintiff 
was  then  and  there  lawfully  upon  and  driving  in  a  southerly 
direction  along  said  street,  in  the  exercise  of  due  care  and  cau- 
tion for  his  own  safety  in  that  regard,  carelessly,  negligently 
and  improperly  propelled,  managed  and  operated  its  said  car 
then  and  there  moving  in,  to  wit,  a.  southerly  direction  along 
said  street,  in  that  said  defendant  carelessly  and  negligently 
failed  to  warn  said  plaintiff'  of  the  approach  of  said  car  while 
well  and  truly  knowing  that  the  plaintiff'  was  then  and  there 
ahead  of  and  in  front  of  said  car, 

2.  That  it  was  also  then  and  there  the  duty  of  the  defend- 
ant, by  its  servants,  to  propel,  operate,  manage  and  control  its 

said  cars  on  said    street  with   due  regard  and 

care  for  the  safety  of  other  vehicles  and  pedestrians  rightfully 
upon  said  street  there ;  yet  the  defendant,  by  its  servants, 
Avholly  regardless  of  its  duty  in  that  behalf,  and  while  the 
plaintiff  was  then  and  there  lawfully  upon  and  drivng  in  a 
southerly  direction  along  said  street,  in  the  exercise  of  due  care 
and  caution  for  his  own  safety  in  that  regard,  carelessly,  im- 
properly and  negligently  propelled,  operated  and  managed  its 
said  car  then  and  there  moving  in  a  southerly  direction  along 
said  street,  in  that  said  defendant  failed  to  ring  the  bell  or 
otherwise  notify  the  plaintiff  of  the  approach  of  said  car. 

By  reason  of  the  failure  to  observe  and  perform  the  several 
duties  as  aforesaid,  said  car  was  then  and  there  propelled  and 
ran  into  and  struck  with  great  force  and  violence  against, 
to  wit,  said  plaintiff'  and  said  wagon,  wherein  and  whereon 


862  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

said  plaintiff  was  riding;  by  means  whereof  the  plaintiff  was 
then  and  there  tlirown  with  great  force  and  violence  from  and 
off  said  wagon  to  and  upon  the  ground  there;  whereby  one  of 
the  legs  of  the  plaintiff  then  and  there  siitVered  a  comixjund 
fracture,  and  he  was  greatly  bruiseil,  hurt  and  injured  and 
divers  bones  of  his  body  were  then  and  there  lacerated,  bruised 
and  broken,  and  one  of  the  legs  of  plaintiff  was  then  and  there 
crushed,  mutilated  and  wounded,  and  said  leg  has  become 
injured  and  completely  and  penuanently  shortened  and  the 
plaintiff  has  completely  and  permanently  lost  the  use  of  said 
leg,  and  the  plaintiff  was  obliged   to  and  did  lay  out   divers 

large  sums  of  money  amounting  to    dollars  in 

and  about  endeavoring  to  be  cured  of  his  said  injuries,  received 
as  aforesaid,  and  also  by  means  of  the  premises  the  plaintiff 
then  and  there  became  and  was  sick,  lame  and  disordered  and 
so  remained  for  a  long  time,  to  wit,  from  thence  hitherto,  dur- 
ing all  which  time  the  plaintiff'  has  sutTered  great  pain  and  has 
been  hindered  and  preventetl  from  attending  to  and  transact- 
ing his  business  and  affairs,  and  for  the  rest  of  his  natural  life 
will  suffer  great  pain  and  be  hindered  and  prevented  from 
transacting,  attending  and  entering  into  his  usual  avocations, 
by  reason  whereof  the  plaintiff'  has  lost  and  will  be  deprived 
of  divers  great  gains  and  profits  which  he  might  and  would 
otherwise  have  made  and  ac(iuired  as  driver  and  teamster  as 
aforesaid.    Wherefore,  etc. 

(Virginia) 

For   this,    to   wit,   that    prior    to    the   appointment    of   said 

receivers,  as  hereinafter  stated,  the company  was 

a  common  carrier  of  passengers,  and  the  owner  and  operator 
of  a  line  of  electric  street  railway  and  the  cars  running  thereon, 
in   street  and  other  highways  in  the  county  of 


That  by  decree  of  said  circuit  court  of  the  United  States 

in  said  cause,  entered  on  the  ....  day  of ,  19.  .,  the 

said  were  appointed  receivers  of  the  said  cor- 
poration, and  were  instructed  to  continue  the  operation  of 
said  street  railway.  That  said  receivers  were  operating  said 
railway  under  said  decree  at  and  before  the  time  the  wrongs 
and  injuries  hereinafter  mentioned  were  committed. 

And  heretofore,  to  wit,  on  the  ....  day  of ,  l^^-  .,  the 

plaintiff  was  seated  in  a  jumper  and  driving  a  fretful  and 

unruly  horse  attached  thereto  along street  in  a 

southwesternly  direction  near  the railroad  cross- 
ing in  the  county  of ,  which  said  street  was  a  public 

highway,    when    the    said    defendants    were    then    and    there 

propelling  one  of  their  cars  along  said street,  in 

a  northeasterly  direction,  which  necessitated  its  passing  in 
close  proximity  to  said  plaintiff  and  his  said  unruly  horse.* 

And  it  then  and  there  became  and  was  the  duty  of  said 


PERSONAL  INJURIES  863 

defendants  to  use  reasonable  and  ordinary  care  to  so  manage 
and  control  its  said  car  as  not  to  run  into  or  upon  said  plaintiff, 
in  case  his  said  horse  should  become  unmanageable  and  get 
upon  the  defendant's  said  tracks;  and  the  plaintiff's  said  horse 
did  then  and  there  become  unmanageable  and  did  back  upon 
said  track,  or  so  close  thereto  as  not  to  enable  said  car  to 
pass  without  striking  said  jumper  and  said  horse ;  yet  the  said 
defendants,  although  well  knowing  the  unruly  and  unmanage- 
able character  of  said  horse,  and  well  knowing  that  the  plaintiff 
was  then  and  there  in  peril,  did  not  properly  control  said  car, 
but,  on  the  contrary,  then  and  there  carelessly,  negligently  and 
recklessly  ran  their  said  car  into,  against  and  upon  the  said 
jumper. 

2.     (Here  consider  as  re-written  all  of  first  count  down  to 
star.) 

And  as  said  car  did  approach  and  get  within  forty  or  fifty 
yards  of  said  plaintiff,  his  said  horse  became  then  and  there 
fretful,  unruly  and  unmanageable,  and  backed  onto  and  off 
said  defendants'  car  tracks  in  front  of  said  approaching  car 
several  times,  placing  the  said  plaintiff  in  a  dangerous  condi- 
tion, all  of  which  was  visible  and  known  to  said  defendants, 
as  well  as  the  great  peril  of  the  said  plaintiff',  and  also  the  said 
plaintiff  warned,  motioned  and  cried  out  to  said  defendants  to 
slacken  the  speed  of  its  car  and  stop  the  same ;  and  thereupon 
it  became  and  was  the  duty  of  the  said  defendants  to  use 
reasonable  care  and  diligence  to  slacken  the  speed  of  said  car 
and  stop  the  same  until  the  said  plaintiff  could  get  safely  by 
said  car  with  his  horse;  yet,  the  said  defendants,  disregard- 
ing their  duty  in  the  premises,  carelessly  and  negligently 
failed  to  stop  or  slacken  the  speed  of  said  car,  and  carelessly 
and  negligently  continued  to  run  the  said  car  towards  said 
horse,  causing  him  to  become  more  fretful  and  frightened,  and 
to  back  said  jumper  on  the  tracks  upon  which  said  car  was 
running,  and  carelessly,  negligently  and  recklessly  ran  said 
car  into,  against  and  upon  the  said  jumper,  whereby  the  said 
plaintiff,  without  any  negligence  on  his  part,  was  thrown  from 
the  said  jumper  to  the  ground,  and  was  greatly  cut,  bruised, 
strained  and  wounded  in  his  hips,  legs,  back,  sides,  arms,  ribs 
and  other  parts  of  his  body,  and  suffered  much  physical  pain 
and  mental  anguish,  and  was  put  to  great  expense  in  attempt- 
ing to  be  healed  of  his  injuries,  and  was  prevented  for  a  long 
time  from  attending  to  his  usual  business  and  occupations, 
and  from  earning  the  accustomed  returns  from  his  labor,  and 
has  been  permanently  injured  and  maimed,  and  rendered  more 
susceptible  to  disease  than  he  otherwise  w^ould  have  been,  and 
rendered  permanently  less  able  to  engage  in  his  usual  business 
and    occupations   and    earn    a    livelihood;    to    the    plaintiff's 

damage  $ 

And  therefore  he  brings  his  suit. 


864  ANNOTATED   FORMS   OF    PLEADING   AND    PRACTICE 

1519  Two  steam  trains,  Narr.  (Mich.) 

For  that  whereas  the  defendant  on  the  ....  day  of , 

in  said  county,  was  possessed  of  and  using  and  opera- 
ting    a     certain     railroad     extending     to     and     from     the 

of  to  the  of 

in   said   county  with  certain   trains   of  cars   running 

thereon  for  the  conveyance  of  passengers  for  reward.     That 

on  the  ....  day  of ,  19.  .,  the  plaintiff,  at  said 

,  entered  a  passenger  car  of  a  regular  train  of  defend- 
ant, and  became  a  passenger  on  said  train  for  a  certain  reward 
to  the  defendant  in  that  behalf,  to  be  then  and  there  carried 

from  said of to  said  .  ; 

of ,  in  said  county,  as  by  law  he  had  a  right  to 

do,  and  as  by  law  the  said  defendant  was  then  and  there 
re((uired  as  a  common  carrier  to  carry  him  the  said  plaintiff 
then  and  there,  without  any  negligence,  imprudence,  care- 
lessness, or  wrong  conduct  on  the  part  of  the  managers,  agents, 
engineers,  firemen,  brakemen,  conductors,  and  other  servants 
of  the  said  defendant,  and  free  from  injury,  hurts,  bruises  and 
damage  caused  by  said  negligent,  careless,  imprudence  and 
wrong  conduct. 

And  therefore  it  then  and  there  became  and  was  the  duty 
of  said  defendant  to  use  due  and  proper  care  that  the  said 
plaintiff  should  be  safely  and  securely  carried  and  conveyed  by 
and   upon   said  passenger  train   on   said   journey   from   said 

of to  said of , 

and  it  was  the  duty  of  the  said  defendant  to  see  that  the 
said  road  between  said  two  stations  was  clear  of  all  other  trains, 
so  that  the  said  passenger  train  could  and  should  run  safely  to 

said   ,  and  it  was  its  duty  and  the  duty  of  its 

managers,  agents,  conductors,  and  engineers  to  so  carefully, 
diligently  and  cautiously  conduct  themselves  in  and  about 
the  running  of  said  trains  and  engines  on  said  road  that  said 
passenger  train  should  have  a  clear  track  and  not  collide  with 
any  other  train  or  engine. 

Yet,  the  said  defendant,  not  regarding  its  duty  in  that  behalf, 
did  not  use  due  and  proper  care  that  said  plaintiff  should  be 
safely  and  securely  carried  and  conveyed  by  and  upon  said 

passenger  train  on  said  journey  from  said to 

said ,  but  wholly  neglected  so  to  do,  and  that  the 

defendant,  its  servants  and  agents  did  not  see  that  the  said 
road  between  said  two  stations  was  clear  of  all  other  trains 
and  engines  so  that  the  said  passenger  train  would  run  safely 

to  said   ,  and  would  not  run  into  another  train 

or  engine;  and  that  the  defendant's  manager,  agents,  con- 
ductors and  engineers  did  not  carefully,  diligently  and  cau- 
tiously conduct  themselves  in  and  about  the  running  of  trains 
and  engines  on  said  road,  that  the  said  passenger  train  should 
have  a  clear  track  and  not  collide  with  any  other  train  or 


PERSONAL  INJURIES  865 

engine,  and  the  defendant  wholly  neglected  its  duty  in  the 
premises ;  and  contrary  to  its  said  duty,  and  its  duty  under  the 
law,  as  a  common  carrier  of  passengers,  and  so  carelessly, 
imprudently  and  negligently  managed  the  running  of  its  trains 
and  engines,  and  its  manager,  agents,  engineers,  station  agents, 
and  conductors  so  carelessly  and  negligently  and  imprudently 
performed  their  duty  in  and  about  the  running  of  said  trains 
and  engines  upon  its  said  road  at  and  near  the  station  called 

,  on  its  said  road,  that  the  engine  and  tender 

number ,  was  wrongfully,  carelessly,  negligently 

and  imprudently  allowed  to  be  and  upon  the  said  track  near 

said   ,  and  to  be  running  west  so  that  by  and 

through  said  carelessness,  negligence  and  imprudence  it  ran 
against,  upon  and  into  the  locomotive  of  said  passenger  train, 
thereby  the  passenger  car  in  which  the  plaintiff  was  then  riding 
as  such  a  passenger  was  crushed,  injured,  broken  and  wrecked 
and  thereby  the  plaintiff,  who  was  then  riding  therein  with- 
out any  negligence  or  want  of  care  on  his  part,  was  injured. 

That  said  passenger  train  upon  which  said  plaintiff  was  a 
passenger  as  aforesaid  left  the  station  of  said  defendant  at 

said ,  at  the  usual  time,  to  wit,  at  about 

and  arrived  at   ,  a  station  on  said  road,  about 

miles  east  of  said ,  at  the  usual  time 

for  said  train,  to  wit,  at  about  the  hour  of ,  and 

departed  from  said  station  on  its  way  to  said  , 

about later.    That  at  a  place  about  a 

of  a  mile  east  of  said  station  the  train  upon  which  plaintiff 
was  so  riding  as  a  passenger  was  going  east  toward  said 
,  was  run  into,  and  collided  with  by  another  loco- 
motive and  tender  of  said  defendant,  being  locomotive  number 

,  of  said  road,  which  was  then  running  west  on 

the  same, track;  that  said  locomotive  and  tender  so  running 
west  was  running  backwards,  so  that  when  the  said  locomo- 
tive and  tender  so  ran  into  the  locomotive  which  was  hauling 
the  train  upon  which  plaintiff  was  a  passenger,  the  rear  end 
of  said  tender  struck  the  head  of  said  passenger  locomotive; 
that  said  locomotive  and  tender  so  running  west  was  so  run- 
ning west  on  the  same  line  without  any  right  of  way  and 
carelessly  and  with  great  and  unusual  speed  and  without  any 
precaution  upon  the  part  of  the  engineer  and  fireman  in 
charge  thereof  to  prevent  such  colliding  with  any  train  going 
east  on  said  track,  and  without  blowing  any  whistle  as  a  warn- 
ing for  approaching  trains,  and  that  there  was  no  conductor  of 
and  for  the  same  and  that  the  said  locomotive  was  in  charge  of 
an  engineer  and  fireman  only;  that  said  engineer  was  care- 
less and  negligent  in  running  said  locomotive  and  tender  upon 
said  track  in  this  that  he  had  just  a  few  minutes  prior  to  said 

collision  pushed  a  train  going  east  to  a  point  about 

mile  east  of  said   ,  and  that  after  leaving  said 

train  that  he  did  not  have  time  to  run  back  with  said  locomo- 


866  ANNOTATED   FORMS  OP  PLEADING   AND   PRACTICE 

tive  and  tender  to  before  said  passenger  train 

would  leave  said ,  going  east. 

And  the  engineer  of  said  locomotive  number  

was  careless,  negligent  and  imprudent  in  running  back  west 
upon  said  track;  that  he  did  not  have  time  to  run  back  and 

reach  said    before  said  passenger  train   would 

pull  out  going  east;  that  he  knew  said  passenger  train  was 

due  to  leave  said  station  at   ,  and 

that  he  knew,  or  ought  to  have  known,  that  he  did  not  have 
time  after  leaving  the  train  that  he  had  been  pushing  to  go 

back  and  reach before  said  passenger  train  would 

pull  out  of ,  going  east ;  that  said  engineer  of  said 

locomotive  number attempted  to  make  said  run 

west  of  without  any  order  or  permission  from 

the  proper  officer  of  said  defendant,  and  in  violation  of  the 
laws  and  rules  of  said  defendant  company  in  regard  to  the 
running  of  trains  upon  said  road. 

That  by  the  rules  and  regulations  of  said  defendant 
company  regarding  the  duty  of  its  locomotive  engineers  and 
conductors  of  trains,  it  was  forbidden  that  any  engineer  or 
conductor  should  run  his  train  or  engine  upon  the  time  of 
another  train,  and  it  was  also  forbidden  that  any  engineer  or 
conductor  should  run  his  engine  or  train  so  that  there  would 
be  any  possible  danger  of  a  collision  with  any  other  train  or 
engine,  and  it  was  also  forbidden  that  such  engineer  or  con- 
ductor should  run  his  engine  or  train  from  one  station  to 
another,  or  from  any  point  upon  the  line  to  another  point  upon 
the  line  without  permission  or  order  of  a  servant  of  said  com- 
pany ca-'led  a  train  despatcher;  that  the  engineer  of  said  engine 

number in  the  performance  of  his  duty  and  in 

compliance  with  said  rules  and  regulations  ought,  after  leav- 
ing said  train  that  he  had  pushed  east  of to  have 

waited  at  a  suitable  and  convenient  side-track  on  said  road 
until  said  passenger  train  had  passed  before  attempting  to  go 
west  to  said 

That  said  collision  was  caused  by  the  aforesaid  negligence, 
carelessness  and  imprudence  of  said  engineer  of  said  locomo- 
tive number and  by  his  said  disregard  and  dis- 
obedience of  said  rules  and  regulations  of  the  defendant  and 
by  the  said  defendant  not  having  and  providing  a  conductor 
for  said  locomotive  number 

That    said    locomotive    and    tender    number    

struck  said  passenger  locomotive  in  said  collision  with  great 
force  and  violence  and  the  said  locomotive  and  tender  number 

and  passenger  train  were  brought  together  with 

great  force  and  violence. 

That  said  plaintiff  while  so  riding  on  said  passenger  train 
was  sitting  in  the  car  next  to  the  engine  upon  a  seat  pro- 
vided for  passengers  and  had  remained  sitting  upon  said  seat 
during  all  of  said  journey  and  down  to  the  time  of  said  col- 


PERSONAL   INJURIES  867 

lision;  that  he  did  not  do  any  act  or  thing  to  cause  said  col- 
lision ;  that  he,  during  all  of  said  time  conducted  himself  with 
care  and  due  regard  for  his  own  safety ;  that  he  used  due  care 
and  diligence  in  and  during  all  of  said  journey  and  that  he 
was  not  in  and  about  said  collision  and  wrecking  of  said  pas- 
senger train  and  the  consequent  injury  to  himself  guilty  of 
any  negligence  whatever  which  would  in  any  way  contribute 
to  said  collision  or  to  the  injury  to  him. 

That  by  means  of  said  collision  and  the  wrecking  of  and 
injury  to  said  passenger  car,  in  which  the  plaintiff  was  so 
riding,  and  by  said  car  being  broken  and  crushed  in  about 
the  tender  and  engine  in  collision  with  said  engine  number 

,  the  plaintiff  was  struck  by  portions  of  said 

passenger  car  and  by  the  tender  of  the  engine  of  said  train 
being  forced  against  and  into  said  car,  so  that  he  was  thrown 
out  of  said  car  and  fell  down  to  and  upon  the  ground  and  the 
plaintiff  was  so  struck  that  he  was  bruised,  wounded,  cut  and 
injured  and  his  body  was  wrenched  and  he  was  knocked  into 
insensibility,  and  that  he  received  thereby  several  severe  cuts 
and  wounds  upon  his  head  and  was  wounded  and  bruised  upon 
his  left  arm,  and  that  both  his  legs  were  bruised  and  wounded 
and  that  his  left  leg  received  a  severe  cut  and  that  his  back 
was  injured  and  that  his  back  was  sprained  across  the  kidneys 
and  that  he  was  injured  internally,  and  that  by  so  being  struck, 
wounded,  bruised  and  injured,  his  nervous  system  became 
injured  and  impaired.  And  also  by  so  being  struck,  wounded, 
bruised  and  injured  and  wrenched  his  bladder  was  injured. 

That  at  the  time  of  said  collision  and  the  consequent  injury 

to  plaintiff  he  was  of  the  age  of years,  was  at 

the  time  prior  to  said  injury  a  strong  man,  physically  and 
mentally,  and  in  good  health  and  with  a  prospect  of  a  long  life 
before  him.  That  by  so  being  struck,  wounded,  bruised  and 
wrenched  he  was  permanently  injured  in  his  legs  and  that  he 
has  become  thereby  weak  and  also  thereby  his  back  was  per- 
manently injured  and  weakened  and  that  thereby  his  bladder 
and  kidneys  were  permanently  injured  and  weakened. 

That  by  reason  of  his  injuries  so  received  by  him,  plaintiff 
was  rendered  incapable  and  unable  by  reason  of  the  physical 
weakness  arising  from  said  injuries,  from  carrying  on  his  busi- 
ness and  occupation  during  the  remainder  of  his  life.  That 
the  business  in  which  the  plaintiff  has  been  engaged  for  many 
years  is  that  of  exploring  and  conducting  and  carrying  on  and 

superintending  mining  operations  in of , 

in  which  business  and  occupation  he  has  always  been  accus- 
tomed to  earn  and  receive  large  compensation  as  earnings,  by 
reason  of  his  skill,  experience  and  reliability  in  such  business 
and  occupation. 

That  said  business  and  occupation  is  and  was  such  that  it 
required  his  personal  attention  and  presence  upon  the  lands, 
explorations  and   mines   in   which   the   work   and   operations 


868  ANNOTATED   FORMS   OP    PLEADING    AND    I'KACTICE 

were  carried  on.     That  by  the  injuries  so  received  by  hira  in 
said  collision  the  plaintiff  has  been  totally  and  forever  dis- 
abled and  incapacitated  from  continuing  in  said  business  and 
occupation.      That   he    has   no   other   occupation,    business   or 
profession.    And  also  by  reason  of  the  premises  tiie  said  plain- 
tiff' became  and  was  sick,  sore,  lame  and  disordered  and  so 
remained  and  continued  for  a  long  space  of  time,  to  wit,  from 
thence  hitherto,  during  all  of  which  time  the  plaintiff  suft'ered 
and  endured  great  mental  and  physieal  pain  and  was  hindered 
and  prevented  from  transacting  and  attending  to  his  neces- 
sary and  lawful   affairs  by   him   during  all   that   time   to  be 
performed  and  transacted ;  aiul  also  was  deprived  of  divers 
great  gains,  profits  and  advantages  which  he  might  and  other- 
wise would  have  derived  and  acquired;  and  that  thereby  also 
said  plaintiff  was  necessarily  forced  and  obliged  to  and  did 
then  and  there  pay,  lay  out  and  expend  divers  large  sums  of 
money  amounting  in  the  whole  to  the  sum  of   ............ 

dollars  in  and  about  endeavoi-ing  to  be  cured  of  the  said  bruises, 
cuts,  injuries  and  in  and  about  being  nursed  and  attended 
and  assisted  as  he  necessarily  must  be  because  of  his  said  weak- 
ness in  his  legs,  back,  kidneys  and  bladder.  In  all  to  the  dam- 
age, etc. 

1520  Two  street  cars,  Narr.  (111.) 

For  that  whereas,  on  and  before,  to  wit,  the day  of 

,    19..,    at    the    city    of     ,    county    of 

,  and  state  of  Illinois,  the  defendant  was  in  the 

possession  of  and  using  a  certain  line  of  street  railway,  com- 
monly known  as  the line,  of  said  defendant,  run- 
ning along,  upon  and  over street,  

and   divers   other  streets   in   the   said   city   of    , 

together  with  certain  cars  thereunto  belonging  and  used  for 
the  conveyance  of  passengers  for  a  certain  reward  to  the 
defendant  in  that  behalf,  and  operated  by  means  of  electricty; 
that  at  the  time  aforesaid  she  was  a  passenger  on  one  of  the 
said  cars  of  the  said  defendant,  which  said  car  was  then  and 
there   being  run   in   a   southerly   direction   along,   upon   and 

over street  at  or  near  the  intersection  of 

street  and street ;  that  it  then  and  there  became 

and  was  the  duty  of  the  said  defendant  to  have  used  the  high- 
est degree  of  care  to  safely  carry  the  plaintiff,  so  being 
a  passenger,  as  aforesaid,  in  and  on  said  car  aforesaid,  along, 
upon  and  over  the  route  traveled  by  the  same;  yet,  the 
defendant  did  not  regard  its  duty  in  that  behalf  and  did  not 
use  due  and  proper  care  that  the  plaintiff  should  be  safely 
carried  in  and  on  said  car  aforesaid,  but  neglected  so  to  do; 
and  by  reason  thereof,  afterwards,  and  while  the  plaintiff  was 
a  passenger  on  said  car  aforesaid  and  in  the  exercise  of  all  due 
care  and  caution  for  her  own  safety,  at  or  near  a  certain  point 


PERSONAL   INJURIES  869 


in  said  city,  county  and  state,  to  wit,  the  intersection  of    ..... 

street  and  .  • street,  the  said  car  aforesaid  collided 

"vUh  a  certain  other  car  of  the  said  defendant;  by  means  and 
in  consequence  whereof  the  plaintiff  was  thrown  with  great 
force  and  violence  upon  and  against  a  ^^ertain  seat  of  said 
.  street  car,  and  by  means  whereof  the  plamtitt  s 
back   and   head   were   severely   hurt,    bruised,   wounded    and 
rnTured,    and   she    was    injured   in    and    about    the    abdomen 
and    in    and    about    the    spinal    cord,    and    ber    back,    head 
and    hip    were    greatly    contused,    and    she    suffered    severe 
nervous  shock,  and  her  mind  became  impaired  and  seriously 
injured,  and  she  was  injured  both  internally  and  externally, 
and    became    therefrom    sick,    sore,    lame,    and    disordered, 
ad  will  be  sick,  sore,  lame,  and  disordered  the  remainder 
of    her    life     during    all    of    which    time    the    plaintiff    has 
suffered  and  will  suffer  great  pain,  and  has  been  prevented 
from  attending  to   and   transacting  her  usual   and   ordinary 
affairs  and  duties,  and  has  lost  and  wi  1  lose  divers  great  ^ains 
and  profits  which  she  otherwise  would  have  made  and  acquiied ; 
and  also  by  means  of  the  premises  she  was  then  obliged  to  and 
became  obligated  to  pay,  lay  out  and  expend  divers  large  sums 

of  money,  amounting  to,  to  wit, doUais,  in  ana 

abo  t  endeavoring  to  be  cured  of  her  said  hurts  bruises 
tounds,  injurks  and  contusions  received  as  aforesaid,  to  the 
damage,  etc.^^^ 

(Maryland) 

For  that  the  defendant  is  a  body  corporate,  duly  incorpo- 
rated and  a  carrier  of  passengers  for  hire ;  that  theretofore,  to 

'^t  on  or  about  the  .  . !^.  day  of ,  19.  .,.the  defendant 

accepted,  the  plaintiff  to  be  its  passenger,  receiyng  from  her 
fare  as  such,  to  be  transported  upon  one  of  its  cars  in  its 

service  in  city;  that  thereupon  it  became  and 

was  the  duty  of  the  defendant  while  the  plaintiff  was  such 
passenger,  to  exercise  the  highest  degree  of  care  practicable 
under  all  the  circumstances  to  transport  the  plaintiff  m  safety ; 
that  in  neglect  and  default  of  its  said  duty  in  the  premises,  said 
defendant  did  not  exercise  the  highest  degree  of  care  prac 
ticable  under  all  the  circumstances  to  transport  the  plamtitt 
n   safety   but    on   the    day   and   year    aforesaid,    a    collision 
occurred^between  the  car  in  which  the  plaintiff  was  being  so 
transported  bv  the  defendant,  and  another  car  of  said  defend- 
ant operated  i3y  its  agents  and  servants,  whereby  the  plaintiff 
was  seriously  Ld  permanently  injured  about  the  head,  body 
and  limbs   the  sight  and  hearing  being  permanently  impaired, 
caused  to  suffer  great  physical  pain  and  mental  anxiety,  dis- 
qualified from  pursuing  any  avocation  by  reason  of  which 

iBsGreinke   v.    Chicago    City   By. 
Co.,  234  111.  564,  565  (1908). 


870  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

she  has  lost  the  emoluments  she  otherwise  would  have  received, 
has  been  put  to  great  expense  for  professional  attention  and 
treatment,  and  the  purchase  of  necessary  medicines,  and  appli- 
ances, and  is  otherwise  injured  and  damaged. 

And  the  plaintiff  says  that  her  said  injuries  were  directly 
caused  by  the  negligence  and  want  of  care  of  the  defendant, 
its  agents  and  servants  in  the  premises,  and  without  negligence 
or  want  of  care  on  the  part  of  the  plaintiff  directly  thereunto 
contributing ;  wherefore  this  suit   is  brought. 

And  the  plaintiff  claims dollars  damages. 


For  that  the  defendant  is  a  body  corporate,  duly  incor- 
porated, and  owns,  operates  and  maintains  a  double  track  elec- 
tric railway,  between  the  city  of ,  in  the  state  of 

Maryland,   and  the  city  of   ,  in   the   District   of 

Columbia,  and  a  single  track  electric  railway,  connected  there- 
with with  the  Naval  Academy  Junction,  in  the  state  of  Mary- 
land, and  the  city  of  Annapolis,  also  in  said  state,  and  is  a 
carrier  of  passengers  for  hire;  that  heretofore,  to  wit,  on  or 

about  the  ....  day  of ,  19. .,  the  defendant  accepted 

,  the  minor  son  of  the  equitable  plaintiff'  in  this 

case,  to  be  its  passenger,  from city  to  the  city  of 

,  and  received  from  him  his  fare,  or  ticket  as  such; 

that  then  and  there  it  became,  and  was  the  duty  of  the  said 
defendant  to  exercise  the  highest  degree  of  care  proper  under 

all  the  circumstances  to  transport  the  said  ,  the 

minor  son  of  the  equitable  plaintiff,  in  safety  to  his  destina- 
tion ;  that  in  neglecting  its  said  duty  in  the  premises  while  the 
ecjuitable  plaintiff's  said  minor  son  was  such  passenger,  the 
said  defendant  did  not  exercise  the  highest  degree  of  care 
practicable  under  all  the  circumstances  to  tran.sport  him  in 

safety  to  his  destination,  but  that  while  the  said , 

the  equitable  plaintiff's  minor  son,  was  such  passenger,   on 

the  said  ....  day  of ,  19.  .,  as  aforesaid,  the  car  upon 

which  the  said  equitable  plaintiff" 's  son,  was  riding,  by  reason 
of  the  negligence,  and  want  of  care  of  the  defendant,  its  serv- 
ants and  agents  in  the  premises,  collided  wnth  another  car, 
also  operated  by  the  defendant,  its  officers,  servants  and  agents, 
coming  in  an  opposite  direction  upon  the  same  single  track, 

at  or  near station,  in  the  state  of  Maryland,  in 

consequence  whereof  the  equitable  plaintiff's  minor  son  was 

killed,  and  that  the  death  of  the  said ,  the  minor 

son  of  the  equitable  plaintiff,  vras  directly  caused  by  the  act, 
negligence  and  default  of  the  defendant,  its  officers,  servants 
and  agents,  and  without  any  negligence,  or  want  of  care  upon 

the  part  of  the  said directly  thereto  contributing; 

that  the  said  deceased  at  the  time  of  his  death  was  engaged  in 

the  wholesale  and  retail business,  in  the  city  of 

,  for  the  benefit,  and  on  account  of  the  said  equi- 


PERSONAL   INJURIES 


871 


table  plaintiff,  from  which  business  he  derived  for  the  equitable 
plaintiff,  great  emoluments,  and  contributed  largely  to  the  sup- 
port and  maintenance  of  this  equitable  plaintiff,  his  wife  and 
family,  and  would  have  continued  to  do  so  until  he  had  attained 
his  majority,  but  for  his  death  occasioned  as  aforesaid;  that  by 
reason  of  the  death  of  the  said . .....  .,  under  the  cir- 
cumstances aforesaid,  the  equitable  plaintiff  has  been  deprived 
of  this  source  of  maintenance  and  support,  and  has  likewise 
directly  sustained  great  pecuniary  loss,  damage  and  mjury. 

Wherefore   this   suit   is   brought    and   the    plaintiff   claims 
dollars  damages. 


1521  Couplers  defective,  assuming  risk,  proof 

Under  state  and  Federal  statutes,  a  common  carrier  owes  an 
absolute  duty,  not  merely  that  of  exercising  reasonable  care 
or  good  faith,  to  equip  its  empty  and  loaded  cars  with  auto- 
matic couplers  and  to  maintain  them  in  a  condition  that  the 
cars  may  be  coupled  and  uncoupled  without  requiring  employees 
to  go  between  them  when  in  the  performance  of  their  duties; 
and  in  an  action  for  a  violation  of  the  Illinois  statute,  the  plain- 
tiff is  not  obliged  to  prove  that  the  common  carrier  did  not 
exercise  reasonable  care  to  maintain  the  safety  appliances  in 
good  condition  and  repair.i^^  Under  the  Illinois  statute,  an 
employee  does  not  assume  the  risk  of  an  injury  by  going  between 
cars  in  the  performance  of  his  duties.^  ^' 
1522  Couplers  defective;  brakeman  injured,  Narr.  (111.) 

For  that  whereas,  the  defendant,  on,  to  wit,  the day  of 

19. .,  was  a  railroad  corporation  and  was  possessed 
of  and  using  and  operating  certain  lines  of  railroad  running 

through  parts  of  the  states  of  Illinois  and ,  some 

of  which  said  lines  extended  through  part  of  the  county  of 

state  of ,  and  some  of  the  same  lines 

extending  through  a  part  of  the  county  of ,  state  of 

,  to  the  city  of  ,  and  that  the  said 

defendant  was  possessed  of  a  large  number  of  locomotives  and 
cars  which  it  used  upon  the  said  lines,  also  using  and  haul- 
ing 'cars  for  other  lines  operating  in  this  and  other  states, 
which  said  locomotives  and  cars  and  lines  of  railroad  the  said 
defendant  used  in  operating  a  certain  system  engaged  m  inter- 
state commerce  as  a  common  carrier,  and  was  then  and  there 

isaLuken  v.  Lake  Shore  &  M.  S.  "' ^uken  v  ^^^^|  ^^°'®  ^  ^'  ^' 

Et  Co.,  248  111.  377,  382,  383  (1911) ;       Ey.  Co.,  248  111.  388. 
Laws  1905,  p.  350  (111.) ;  1901  U.  S. 
Comp.  St.,  p.  3174;  1909  U.  S.  Comp. 
St.,  p.  1143. 


872  ANNOTATED   FORMS  OF   PLELVDING   AND   PRACTICE 

engaged  in  interstate  commerce  on  the  day  and  date  aforesaid, 
and  had  been  so  engaged  for  many  years  immediately  before 
that  time.  That  on  the  day  and  date  aforesaid,  and  for  a 
number  of  months  prior  thereto,  he  was  in  the  employ  of 
the  said  defendant  as  a  freight  brakeman,  working  with  a 

crew  operating  between  the  city  of   ,  county  of 

,  aforesaid,  and  the  city  of ,  in  the 

county  of  aforesaid,  in  the  service  of  the  said 

defendant  while  the  said  defendant  was  so  engaged  as  a  com- 
mon carrier  of  interstate  commerce. 

And  the  plaintiff  avers  that  the  defendant  on  the  day  and 
date  aforesaid,  being  a  railroad  corporation  engaged  in  inter- 
state commerce  as  a  common  carrier  as  aforesaid,  it  then  and 
there  became  and  was  the  duty  of  the  said  defendant  to  have 
its  cars  used  in  moving  interstate  traffic  equipped  with  couplers 
coupling  automatically  by  impact,  so  that  the  said  cars  could 
be  coupled  and  uncoupled  without  the  necessity  of  men  going 
between  the  ends  of  the  cars,  according  to  an  Act  of  Congress, 
entitled,  "An  Act  to  promote  the  safety  of  employees  and  travel- 
ers upon  railroads  by  compelling  common  carriers  engaged  in 
interstate  commerce  to  equip  their  cars  with  automatic  couplers 
and  continuous  brakes,  and  their  locomotives  with  drive  wheel 
brakes,  and  for  other  purposes,"  approved  March  2,  1893;  and 
it  then  and  there  became  and  was  the  further  duty  of  the  said 
defendant  to  keep  the  same  in  reasonably  safe  condition  and 
repair  so  that  the  plaintiff  and  other  servants  of  the  said 
defendant  would  not  be  exposed  to  unnecessary  danger  while 
in  and  about  the  performance  of  their  duties  in  and  about 
the  coupling  and  uncoupling  of  cars  and  engines  while  in  the 
exercise  of  due  care  and  caution  for  their  own  personal  safety. 

And  plaintiff  avers  that  on,  to  wit,  the  night  of  the 

and of ,  19. .,  at,  to  wit,  after  the  hour  of 

midnight,  the  train  crew,  of  which  plaintiff  was  a  member, 

were  at  a  point  in  the  city  of ,  on  the  line  of  the 

said  road,  known  as   ,  and  had  with  them  the 

engine  and  caboose  in  their  charge;  that  on  the  night  afore- 
said, the  said  crew  was  ordered  to  take  their  engine  and  caboose 

and  proceed  to  the  station  of ,  to  pick  up  a  train 

of  cars  to  bring  to  the  city  of   ;  that  the  said 

defendant,  notwithstanding  its  duty  in  that  behalf  according 
to  the  statute  aforesaid,  negligently  and  carelessly  failed  to 
have  its  said  caboose  equipped  with  couplers  coupling  auto- 
matically by  impact,  and  negligently  and  carelessly  failed  to 
keep  the  same  in  reasonably  safe  condition  and  repair,  so 
that  the  plaintiff  would  not  be  exposed  unnecessarily  to  danger 
of  injury  by  being  compelled  to  go  between  the  end  of  the 
caboose  and  the  end  of  the  engine  for  the  purpose  of  coupling 
said  engine  to  the  said  caboose ;  that  the  said  defendant  then 
and  there  negligently  and  carelessly  permitted  one  of  the 
couplers,   or   draw   bars   upon   its   said   caboose,    which   said 


PERSONAL  INJURIES  873 

coupler  or  draw  bar  it  was  then  and  there  necessary  for  this 
plaintiff  to  use  in  making  a  coupling  with  defendant's  engnie 
aforesaid,  to  be  and  remain  in  a  dangerous  and  unsafe  condi- 
tion and  out  of  repair,  which  said  dangerous,  unsafe  and 
defective  condition  of  the  said  draw  bar  or  coupler  was 
known  to  the  defendant  and  had  been  known  to  the  defendant 
for,  to  wit,  many  weeks  prior  to  the  said  time. 

2.  And  plaintiff  further  avers  that  the  said  defendant  on 
the  day  and  date  aforesaid,  being  a  railroad  corporation  operat- 
ing certain  lines  of  railroad,  and  using  thereon  certain  cars, 
known  as  cabooses,  and  certain  locomotives  as  aforesaid,  it 
then  and  there  became  and  was  its  duty  to  furnish  its  employees 
with  reasonably  safe  machinery  and  appliance  with  which  to 
work,  and  to  keep  the  same  in  reasonably  safe  condition  and 
repair,  so  that  the  plaintiff  and  other  servants  in  and  about  the 
performance  of  their  duties  while  in  the  service  of  the  said 
defendant  would  not  be  unnecessarily  exposed  to  danger  of 
injury  while  in  the  exercise  of  ordinary  care  and  caution  for 
their  own  personal  safety;  but  that,  on,  to  wit,  the  hour  of 

o'clock  ..  M.  on  the day  of ,19..,  the 

said  defendant  negligently  and  carelessly  failed  to  furnish  this 
plaintiff  with  reasonably  safe  machinery,  appliances,  etc.,  and 
negligently  and  carelessly  failed  to  keep  the  same  m  reason- 
ably safe  condition  and  repair.  That  is  to  say,  that 
on  the  night  aforesaid,  after  having  attempted  to  equip 
its  certain  caboose,  which  was  in  the  charge  of  the  freight 
crew  of  which  this  plaintiff  was  a  member,  with  an  automatic 
coupler,  the  said  defendant  permitted  the  same  to  be  and 
remain  'in  a  dangerous  and  unsafe  condition,  which  dangerous 
and  unsafe  condition  had  previously  been  reported  to  the  said 
defendant,  and  which  dangerous  and  unsafe  condition  was 
unknown  to  this  plaintiff.  _ 

And  plaintiff  avers  that  by  reason  of  the  neghgence  ot  the 
defendant  aforesaid,  and  because  the  said  defendant  had  neg- 
lio-ently  and  carelessly  failed  to  have  its  caboose  equipped  as 
aforesaid,  according  to  the  statute  of  the  United  States  m 
such  case  made  and  provided,  and  had  failed  to  keep  the  said 
caboose,  after  having  once  attempted  to  comply  with  the  statute 
aforesaid,  in  a  reasonably  safe  condition  and  repair,  according 
to  the  intent  and  purpose  of  the  said  statute  as  aforesaid, 
that  this  plaintiff,  while  in  and  about  the  performance  of  his 
duty  in  attempting  to  couple  his  engine  to  his  said  caboose,  at 

a  point  on  the  said  defendant's  line  known  as ., 

his  right  hand  caught  and  was  crushed  between  the  draw  bar 
of  the  said  engine  and  the  draw  bar  of  the  said  caboose,  and 
while  the  said  plaintiff  was  in  the  exercise  of  ordinary  care 
and  caution  for  his  own  personal  safety,  bruising,  mangling 
and  crushing  plaintiff's  said  right  hand  so  that  amputation 
became  and  was  necessary  at  a  point  above  the  wrist,  causing 
the    plaintiff    herein    to    become    permanently    injured    and 


874  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

crippled,  for,  to  wit,  from  thence  hitherto,  during  all  of  which 
time  he  thereby  suffered  great  pain  and  agony  and  was 
hindered  from  transacting  his  business  and  affairs  and  from 
following  his  usual  occupation ;  also  by  means  of  the  premises 
he  was  thereby  obliged  to  and  did  lay  out  divers  sums  of 

money,  amounting  to,  to  wit, dollars,  in  and  about 

endeavoring  to  be  healed  of  his  wounds,  sickness  and  dis- 
order; to  the  damage,  etc.^^^ 

1523  Couplers  defective;  switchman  injured,  Narr.  (111.) 

For  that  whereas,  heretofore  and,  on,  to  wit,  the  ....  day  of 

,  19.  •,  the  defendant  was  possessed  of  and  operating  a 

certain  railway  which  extended,  among  other  places,  through  a 
portion  of  the  state  of  Illinois,  and  it  was  then  and  there  a 
common  carrier  engaged  in  interstate  commerce  and  in  mov- 
ing traffic  upon  its  said  railway  line  between  points  in  said 
state,  and  the  plaintiff  was  then  and  there  employed  by  the 
defendant  as  a  SAvitchman  to  switch  with  certain  engines  and 
cars  which  it  then  and  there  operated  upon  its  said  railway 
line,  and  as  such  switchman  earned,  to  wit, dol- 
lars per  month ;  that  at  the  time  and  place  aforesaid,  to  wit,  at 
the  defendant's  railway  yards  which  it  operated  in  connec- 
tion with  and  as  a  part  of  its  said  railway  line,  to  wit,  at 

,  in  the  city  of ,  in  the  county  and 

state  aforesaid,  the  defendant  unlawfully,  wrongfully  and  neg- 
ligently, and  contrary  to  the  statute  in  such  case  made  and 
provided,  hauled  and  used  upon  its  said  railway  line  in  mov- 
ing said  traffic  between  points  in  said  state  a  certain  car 
equipped  with  a  certain  coupler,  which,  by  reason  and  in  con- 
sequence of  its  then  improper  and  defective  condition  of  repair, 
could  not  be  coupled  automatically  by  impact  without  the 
necessity  of  its  switchmen  going  between  the  ends  of  said  cars. 

2.  And  the  plaintiff  further  alleges  that  at  the  tim.e  and 
place  aforesaid,  to  wit,  in  the  defendant's  railway  yards  which 
it  operated  in  connection  with  and  as  a  part  of  its  said  rail- 
way line,  at,  to  wit, ,  in  the  city  of , 

in  the  county  and  state  aforesaid,  the  defendant  unlawfully, 
wrongfully  and  negligently,  and  contrary  to  certain  Acts  of 
Congress  in  such  case  made  and  provided,  hauled  and  used 
on  its  said  railway  line  in  moving  interstate  traffic  a  certain 
car  equipped  with  a  certain  coupler,  which,  by  reason  and  in 
consequence  of  its  then  improper  and  defective  condition  of 
repair,  could  not  be  coupled  automatically  by  impact  without 
the  necessity  of  its  switchmen  going  between  the  ends  of  said 
ears. 

That  said  plaintiff  as  such  switchman  was  then  and  there 

158  Chicago    &    Alton    Ry.    Co.    v. 
Walters,  217  111.  87  (1905). 


PERSONAL   INJURIES  875 

required  by  the  defendant  to  couple  said  ear  on  to  a  certain 
other  car  then  standing  upon  the  same  track  and  close  to  it, 
and  in  the  discharge  of  his  duty  as  such  switchman  and  while 
he  was  exercising  ordinary  care  and  caution  for  his  own  safety, 
he  was,  as  a  direct  result  and  in  consequence  of  the  said  defec- 
tive and  improper  condition  of  said  coupler,  required  to  and  did 
go  between  the  ends  of  said  cars  for  the  purpose  of  attempting 
to  adjust  said  coupler  in  order  that  it  might  be  coupled  on  to 
said  other  car,  and  while  so  being  between  the  ends  of  said  cars 
and  while  attempting  to  adjust  said  coupler  for  the  purpose 
aforesaid,  said  other  car  was,  without  the  knowledge  of  the 
plaintiff,  moved  back  against  said  car  so  equipped  with  said 
coupler  in  said  defective  and  improper  condition  of  repair  as 
aforesaid,  and  as  a  direct  result  and  in  consequence  of  the  said 
defective  and  improper  condition  of  said  coupler  as  aforesaid, 
which  necessitated  plaintiff's  going  between  the  ends  of  said 
cars  and  of  his  so  being  between  the  ends  of  said  cars  for  the 
purpose  aforesaid,  one  of  his  hands  and  arms  was  thereby  then 
and  there  caught  and  crushed  between  the  ends  of  said  cars 
and  his  said  hand  and  arm  were  thereby  then  and  there  so 
seriously  crushed  and  mangled  that  their  use  has  become  and 
is  greatly  and  permanently  impaired,  and  divers  other  bones, 
ligaments,  muscles,  tendons  and  membranes  of  the  plaintiff's 
body  were  also  thereby  then  and  there  sprained,  dislocated, 
broken  and  otherwise  injured,  and  he  sustained  a  serious  shock 
to  his  nervous  system,  and  as  a  direct  result  of  his  said  injuries 
he  has  ever  since  suffered  and  will  continue  permanently  to 
suffer  great  pain,  and  has  become  and  is  permanently  crippled, 
sick,  sore  and  disordered,  and  incapacitated  from  attending  to 
or  transacting  his  regular  business,  or  any  ordinary  business  or 
affairs,  and  he  has  thereby  been  and  will  continue  permanently 
to  be  deprived  of  great  gains  and  profits  which  he  might  and 
otherwise  would  have  made  and  acquired,  and  he  has  been 
compelled  to  and  did  incur,  expend  and  lay  out  for  medical 
attention,  nursing,  medicines  and  otherwise,  divers  large  sums 

of  money,  amounting  to,  to  wit,  the  sum  of dollars,  in 

and  about  endeavoring  to  be  cured  of  his  said  injuries,  sickness 
and  disorders,  occasioned  as  aforesaid.    To  the  damage,  etc. 


For  that  whereas  the  said  defendant  was,  on,  to  wit, 

day  of ,  possessed  of,  and  operating  certain  loco- 
motive engines,  cars,  trains  of  cars,  railroad  tracks  and  railroad 

yards  in,  or  near,  the  city  of in 

county,  Illinois,  and  on  the  said  date  defendant  was  engaged 
in  switching  certain  railway  cars  by  means  of  a  certain  loco- 
motive engine,  which  said  engine  and  train  of  cars  were  in 
charge  of  a  certain  night  switching  crew  of  defendant,  which 
crew,  including  plaintiff,  was  under  the  direct  supervision  and 
control  of  a  certain  foreman  by  the  name  of , 


876  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

who  was  not  then  and  there  a  fellow-servant  of  plaintiff;  that 
plaintiff  was  then  and  there  in  the  employment  of  the  said 
defendant  as  a  member  of  said  switching  crew  in  the  capacity 
of  switchman,  it  being  the  duty  of  plaintiff  to  couple  and 
uncouple  cars  and  to  do  the  work  usually  and  ordinarily  done 
by  a  switchman  of  a  yard  switching  crew;  and  that  plaintiff 
was  then  and  there  inexperienced  in  said  work  and  was  un- 
familiar with  the  hazards  and  dangers  incident  thereto. 

And  plaintiff'  further  avers  that  one  of  the  couplers  with 
which  the  said  cars  were  coupled  and  which  said  phiintiff  was 
attempting  to  operate  was  defective  and  out  of  repair,  so  that 
said  cars  could  not  be  uncoupled  from  the  side  on  which  plain- 
tiff was  working;  that,  in  obedience  to  the  direct  and  specific 
order  of  the  said  foreman,  who  then  and  there  had  authority  to 
direct  and  order  the  plaintiff'  in  and  about  said  work,  plaintiff 
got  upon  one  of  said  cars  and  crossed  over  the  same  to  uncouple 
said  cars  from  the  opposite  side,  and  said  foreman  then  and 
there  knew,  or  should  have  known,  that  to  suddenly  check  the 
motion  of  said  moving  cars  while  the  plaintiff  was  uncoupling 
said  cars,  or  before  he  had  fully  regained  his  balance  after  hav- 
ing uncoupled  the  same,  would  necessarily  place  plaintiff  in  a 
perilous  and  very  dangerous  position  and  would  in  all  prob- 
ability cause  him  to  fall  upon  said  railroad  tracks  in  front  of 
said  cars;  that  while  plaintiff'  was  attempting  to  uncouple  said 
cars,  or  after  having  just  uncoupled  the  same,  and  while  in  the 
exercise  of  reasonable  and  ordinary  care  and  caution  for  his 
own  safety,  the  said  foreman  of  the  defendant  negligently  and 
carelessly  signaled  and  caused  the  engineer  in  charge  of  said 
locomotive  engine  to  suddenly  check  the  motion  of  said  locomo- 
tive engine  and  cars  thereto  attached,  which  caused  the  said 
cars  to  jerk  or  jolt,  thereby  throwing  said  plaintiff  from  said 
car  to  the  ground  there  and  upon  the  tracks  over  which 
said  cars  were  being  propelled,  and  some  of  said  cars  then  and 
there  ran  over  said  plaintiff',  thereby  crushing,  mashing  and 
mangling  said  plaintiff"s  legs  and  left  arm  so  that  it  became 
necessary  to  amputate  both  of  said  legs  and  said  arm,  whereby 
said  plamtiff  was  seriously  and  permanently  injured,  and 
became  sick,  sore,  lame  and  disordered,  and  so  remained  from 
thence  hitherto,  and  thereby  plaintiff  suffered  great  pain  of 
body  and  mind,  and  will  continue  so  to  suffer  through  his  entire 
lifetime,  and  has  lost  a  large  amount  of  wages  and  has  been 
deprived  of  his  means  of  livelihood,  and  has  expended  and  will 
expend  a  large  amount  of  money  for  nursing,  medicines  and 
medical  attention  in  endeavoring  to  be  cured  of  said  injuries, 
which  said  injuries  were  directly  and  proximately  caused  by 
the  careless  and  negligent  order  of  said  foreman,  in  directing 
and  commanding  the  plaintiff  to  get  upon  and  cross  over  to  the 
opposite  side  of  one  of  said  cars  and  to  uncouple  therefrom 
certain  of  said  cars  while  in  motion,  and  by  the  negligence  of 
the  foreman  in  carelessly  causing  the  engineer  to  suddenly 


PERSONAL    INJURIES  877 

slacken  the  speed  of  such  locomotive  engine  and  cars  thereto 
attached  while  plaintiff  was  attempting  to  uncouple  said  cars, 
or  was  in  the  act  of  regaining  his  balance  after  having  un- 
coupled same,  in  obedience  to  a  direct  and  specific  command 
and  order  of  said  foreman,  to  the  damage,  etc, 

1524  Dangerous  premises,  invitation,  action 

The  owner  or  tenant  is  bound  to  take  reasonable  care  to  see 
that  his  premises  are  in  a  reasonably  safe  condition  for  persons 
who  come  there  upon  his  direct  or  implied  invitation ;  and  he  is 
liable  for  an  injury  which  results  from  a  failure  to  perform 
that  duty  to  a  person  who  has  exercised  reasonable  care  for  his 
own  safety  while  using  the  premises  for  the  purpose  for  which 
the  invitation  was  extended.  ^^^ 

1525  Depot  grounds;  trespassers,  action,  proof 

Ordinarily,  the  obligation  of  care  to  avoid  injury  of  a  tres- 
passer arises  at  the  time  that  his  perilous  position  becomes  known 
to  those  who  are  in  charge  of  the  train.  This  has  no  applica- 
tion to  depot  grounds  and  platforms  provided  for  the  use  of  the 
public  in  the  transaction  of  its  business,  where  persons  have  a 
right  to  be  for  legitimate  purposes  and  where  they  may  reason- 
ably be  expected.  If  they  are  there  for  a  legitimate  purpose 
in  connection  with  the  business  of  the  railroad  company  they 
have  a  right  to  demand  the  exercise  of  reasonable  care  for  their 
safety.  If  they  are  simply  idlers,  loiterers  or  trespassers,  the 
duty  of  the  company  is  only  to  abstain  from  wilful  or  wanton 
negligence.  This  duty  is  owing  to  an  indeterminate  part  of  the 
public  generally,  giving  a.  right  of  action  to  anyone  of  the  gen- 
eral public  who  suffers  from  a  violation  of  that  duty.^*^"  The 
running  of  a  train  at  night  without  headlight  and  without  warn- 
ing by  bell  or  whistle  over  unlighted  station  grounds  and  along 
a  platform  where  persons  may  reasonably  be  expected  tends  to 
prove  a  wanton  and  reckless  disregard  of  such  persons  safety, 
and  no  specific  knowledge  of  their  presence  on  track  or  plat- 
form, or  the  existence  of  specific  ill-will  toward  or  an  intention 
to  injure  them  are  necessary.^^i 

159  Devaney  v.  Otis  Elevator  Co.,  i«i  Neice  v.  Chicago  &  Alton  R. 
251  111.  28,  34  (1911).                                Co.,  254  111.  604. 

160  Neice  v.    Chicago  &   Alton   R. 
Co.,  254  111.  595,  603   (1912), 


878  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

1526  Depot  grounds,  Narr.  (111.) 

For  that  whereas  the  defendant,  the   ,  on  the 

day  of ,  10.  .,  and  for  a  long  time  prior 

thereto,  owned  and  operated  a  certain  line  of  railroad  extending 

through  said  county  of and  in  and  through  the 

said  city  of in  the  said  county,  over  which  said 

line  of  railroad  the  said railroad  company  on  the 

date  aforesaid  knowingly  permitted  the  other  defendant  here- 
in, the railroad  company,  to  operate  trains  of  cars 

drawn  by  locomotive  engines;  that,  on  the  date  aforesaid,  the 

said railroad  company  had  a  depot  on  the  west 

side  of  the  tracks  of  its  said  line  of  railroad  in  the  said  city  of 

,  which  said  depot  was  used  by  the  patrons  of  the 

railroad  company,  the railroad 

company  and  other  roads  passing  through  the  said  city  of  .... 

;  that  on  the  east  side  of  said  depot  there  were 

lines  of  railroad  tracks  extending  in  a  northerly  and  southerly 
direction ;  that  the  said railroad  company  had  con- 
structed between  the  second  and  third  railroad  tracks  to  the 
east  of  the  depot  a  platform  for  the  use  of  the  people  going  to 
and  from  trains  on  said  track,  and  had  constructed,  from  the 
said  depot  eastwardly  across  the  said  tracks  to  and  from  said 
platform,  a  board  sidewalk  leading  from  said  depot  toward  one 

of  the  streets  of  said  city  of extending  eastwardly  from 

said  depot;  that  said  platform  and  the  walk  aforesaid,  were 
used  and  frequented  by  large  number  of  people  every  day,  and 
at  all  times,  by  people  going  to  and  from  said  depot,  which  fact 
was  known  to  the  defendants ;  and  that  on  the  date  aforesaid, 
her  intestate  who  had  come  to  the  said  depot  for  the  purpose 

of  going  to ,  Illinois,  upon  one  of  the  trains  of 

the  said railroad  company  from  the  said  depot, 

was  standing  upon  said  platform,  and  near  or  upon  the  walk 

aforesaid,  waiting  for  the railroad  company  train, 

which  was  then  approaching  said  depot,  to  stop  at  said  depot. 

And  that  the  defendant,  the railroad  company, 

through  certain  of  its  servants  in  charge  of  a  certain  engine 
and  train  of  cars,  with  gross  negligence  and  reckless  disregard 
for  the  safety  of  persons  who  might  be  upon  said  cross-walk 
and  platform,  wantonly  and  wilfully  ran  and  operated  the  said 
engine  and  train  of  cars  along  and  upon  the  said  tracks  of  the 

railroad  company  in  the  night  time  at  a  high  rate 

of  speed,  without  ringing  a  bell  or  sounding  a  whistle  and 
without  having  a  proper  headlight  burning  upon  said  engine 
and  without  the  engineer  in  charge  of  said  engine  looking  in 
front  of  said  engine,  past  said  depot  and  platform  and  oyer 
said  cross-walk  in  the  said  city  of while  plain- 
tiff's  intestate  was  standing  upon  said  platform  and  cross-walk, 
as  aforesaid,  whereby  said  engine  was  driven  upon  and  against 
plaintiff's  intestate,  inflicting  injuries  upon  him  from  which  he 


PERSONAL  INJURIES  879 

died  on  the  same  day.  (Add  last  two  paragraphs  of  Section 
1495) 

1527  Derrick  injury,  Narr.  (111.) 

For  that  whereas,  on,  to  wit ,  19 . . ,  said  de- 
fendants were  engaged  in  the  business  of  constructing  or  doing 

work  in  and  about  a  certain  building,  at  or  near  the . . 

corner  of streets,  in  the  city  of ._. 

.  ] ,  county  and  state  aforesaid,  and  in  the  course  of  their 

said  work  it  became  necessary  to  tear  down  or  break  down  por- 
tions or  all  of  a  certain  structure  supporting  all  or  a  portion 
of  an  alley,  which  said  structure  was  in  divisions  or  panels ;  and 
that  the  plaintiff  was  an  iron  worker  employed  in  said  work 
and  in  said  panels. 

And  it  then  and  there  became  and  was  the  duty  of  the 
defendant  company  to  exercise  ordinary  care  in  and  about  its 
premises  aforesaid,  so  that  the  plaintiff  and  others  who  were 
then  and  there  employed  by  the  defendant  company  and  en- 
gaged in  its  work  should  not  suffer  nor  be  endangered  by  care- 
lessness; yet,  the  defendant,  notwithstanding  its  duty  in  that 
regard,  wrongfully,  negligently  and  improperly  caused  a  large 
piece  of  iron  to  be  raised  by  means  of  a  derrick  and  dropped 
on  the  structure  that  it  was  then  engaged  in  tearing  down  and 
removing,  without  giving  the  defendant  any  warning  and  with- 
out notifying  him  that  such  action  was  dangerous ;  that  he  had 
no  knowledge  that  danger  attended  said  operation ;  said  plain- 
tiff avers  that  said  operation  was  not  done  by  a  fellow-servant 
of  this  plaintiff ;  and  that  by  the  premises  aforesaid,  when  the 
iron  was  dropped,  a  large  portion  of  the  structure  came  down 
carrying  with  it  the  plaintiff. 

2.  And  it  also  became  and  was  the  duty  of  the  defendant 
to  use  reasonable  and  ordinary  care  in  and  about  the  prem- 
ises, so  as  to  provide  the  plaintiff  with  a  reasonably  safe  place, 
and  appurtenances  on,  in  and  with,  which  to  do  the  work  for 
which  he  was  employed;  yet,  the  defendant,  disregarding  its 
legal  duty  in  that  behalf,  proceeded  to  destroy  and  break 
down  said  structure,  panel  by  panel,  or  in  divisions,  by  drop- 
ping from  a  height  thereon  a  heavy  brake  or  beam,  and  before 
so  doing  had  wrongfully  and  negligently  loosened  or  removed 
various  rods,  bolts,  ties  or  supports  whereby  said  panels  in  said 
structure  were  kept  in  place,  thereby  weakening  and  endanger- 
ing the  structure,  of  which  condition  the  plaintiff  was  ignorant, 
the  defendant  having  negligently  failed  to  inform  him;  that 
while  the  panels  or  divisions  of  the  structure  were  in  such 
weakened  condition  the  defendant  negligently  dropped  a  heavy 
weight  to  or  on  the  north  part  of  said  panels,  and  thereby  while 
the  plaintiff,  who  was  in  the  exercise  of  ordinary  care  for  his 
own  safety  and  without  the  fault  of  any  fellow-servant,  and 
while  he  was  working  to  the  south  of  and  some  distance  away 


880  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

from  the  place  on  which  the  weight  was  dropped,  was  thrown 
down  by  the  collapse  or  fall  of  the  weakened  structure,  occa- 
sioned by  the  wrongful  dropping  of  the  weight  thereon. 

By  means  whereof  the  plaintiff  was  injured  in  and  about  his 
head,  body,  and  limbs,  and  divers  bones  of  his  body  were 
broken,  sprained  and  injured,  his  nervous  system  was  shattered 
and  wrecked,  and  he  sustained  various  other  physical  and 
mental  injuries,  all  of  which  injuries  are  permanent  and  incur- 
able; and  he  became  and  was  sick,  sore,  lame  and  disordered, 
and  so  remained  from  thence  hitherto.  And  the  plaintiff  avers 
that  by  means  of  the  premises  he  lost  his  usual  gains  and  profits 

as  an  iron  worker,  to  wit,  the  sum  of dollars  per 

day  from  thence  hitherto,  and  he  was  compelled  to  and  did  lay 

out  a  large  sum  of  money,  to  wit, dollars  for 

medicine,  care,  surgery,  attendance,  nurses  and  appliances  in 
and  about  being  healed  and  cured  of  his  injuries  aforesaid.  To 
the  damage,  etc. 

1528  Drover's  unsafe  place,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the day 

of ,  19. .,  the  defendant  was  owner  of,  possessed, 

using,  and  operating  a  certain  railroad  extending  from , 

in  the  county  of aforesaid,  through  a  portion  of 

said  county  to ,  in  said  state  and  elsewhere,  and 

was  also  possessed  of,  using,  and  operating  divers  locomotive  en- 
gines and  trains  of  cars  for  the  purpose  of  transporting  freight 
and  passengers  for  hire  and  reward ;  that  said  plaintiff  was  then 
and  there  engaged  in  the  business  of  buying,  shipping  and  sell- 
ing live  stock,  and  on  the  day  aforesaid  he  delivered  to  said 
defendant  at a  car  loaded  with  cattle  to  be  trans- 
ported by  said  defendant  in  its  said  car  on  its  said  railroad  in 

one  of  its  said  freight  trains  to  the  said  city  of 

for  hire  and  reward ;  that  it  then  and  there  became  necessary 
for  him  to  accompany  said  car  load  of  cattle  on  said  trip  for 
the  purpose  of  watching  over  and  caring  for  the  same;  that 
the  defendant  in  consideration  thereof,  and  of  the  payment  of 
said  freight  on  said  car  load  of  cattle,  then  and  there  issued  to 
the  plaintiff  a  drover's  pass  or  ticket,  by  means  whereof  the 

plaintiff  was  entitled  to  ride  upon  said  freight  train  from 

to for  the  purpose  of  watching  over 

and  caring  for  said  cattle  while  so  enroute ;  and  that  the  de- 
fendant, in  consideration  thereof,  then  and  there  undertook, 
promised  and  agreed  to  carry,  convey  and  transport  the  plain- 
tiff in  safety  as  a  passenger  upon  said  freight  train  from  ...... 

to for  the  purpose  aforesaid. 

'   AJnd  the  plaintiff  further  avers  that  it  then  and  there  became 

and  was  the  duty  of  the  defendant  to  furnish  him  a  suitable 

and  reasonably  safe  place  to  ride  upon  said  freight  train  from 

..  i ........  to and  to  give  him  a  reasonable 


PERSONAL  INJURIES  881 

opportunity  to  inspect  and  care  for  said  cattle  while  so  enroute, 
with  safety  to  his  own  person.  Yet,  the  defendant,  totally  dis- 
regarding its  said  duty  in  that  behalf  then  and  there  by  defend- 
ant 's  conductor  in  charge  of  said  train,  while  the  plaintiff  was 
riding  thereon  in  the  caboose  and  in  a  place  of  safety,  care- 
lessly and  negligently,  well  knowing  the  hazard  of  said  position, 
notified  and  directed  the  plaintiff  to  leave  said  caboose  and 
ride  upon  the  locomotive  engine  while  so  enroute  so  that 
time  might  be  saved  in  the  inspection  of  said  cattle  by  the  plain- 
tiff during  the  stoppage  of  said  train  at  the  city  of , 

where  it  became  and  was  necessary  to  inspect  said  cattle,  and 
the  progress  of  the  defendant's  said  train  and  business  might 
be  thereby  facilitated. 

And  the  plaintiff  avers  that,  relying  upon  said  invitation  of 
the  defendant's  said  conductor,  he  then  and  there  left  said 
caboose  and  mounted  said  engine  and  took  a  position  upon  the 
gangway,  using  due  care  and  caution  for  his  own  safety,  for  the 
purpose  of  riding  thereon  to  expedite  the  inspection  of  said 
car  of  cattle  which  was  located  in  said  train  next  to  said  engine, 

upon  the  stoppage  of  said  train  in  the  city  of ; 

that  it  was  then  night  time  and  was  very  dark  upon  said 
engine,  and  while  so  riding  thereon,  standing  in  the  gangway 
between  the  said  engine  and  the  tender,  it  became  and  was 
necessary  for  the  fireman,  one  of  the  defendant's  servants  then 
and  there  in  charge  of  said  engine,  to  occupy  the  position  where 
plaintiff  was  standing  for  the  purpose  of  tending  the  fire ;  that 
said  fireman  instead  of  directing  plaintiff  to  a  place  of  safety 
upon  said  engine  where  he  might  ride  without  being  subjected 
to  danger  of  injury,  as  he  might  have  done,  on  the  contrary, 
well  knowing  the  dangers  and  hazards  incident  to  such  position, 
then  and  there  wilfully  and  wantonly  disregarding  plaintiff's 
safety,  invited,  ordered  and  directed  the  plaintiff  to  change  his 
position  from  said  gangway  to  a  seat  at  one  side  of  said  engine 
cab;  that  that  portion  of  said  engine  was  very  dark  and  was 
not  illuminated  by  a  light  of  any  kind;  that  there  was  an  open 
window  adjoining  said  seat  to  where  he  was  so  directed,  which 
rendered  said  position  extremely  hazardous  to  one  not  familiar 
with  its  dangers,  and  that  he,  the  plaintiff,  was  unfamiliar  with 
the  surroundings  of  said  position  and  did  not  know  of  the 
dangers  and  hazards  incident  thereto. 

And  the  plaintiff  further  avers  that  relying  upon  said  invita- 
tion and  believing  that  said  position  was  one  of  safety,  he  then 
and  there  proceeded  to  said  portion  of  said  engine,  and  while 
endeavoring  to  take  a  seat  at  said  point,  by  reason  of  the  dark- 
ness of  the  surroundings,  the  narrowness  of  the  position,  the 
open  window,  and  the  motion  of  the  engine,  he  suddenly  and 
unavoidably  lost  his  balance,  fell  and  was  thrown  from  said 
dangerous  position  through  and  out  of  said  open  window  upon 
the  adjacent  track,  with  great  force  and  violence,  whereby  the 
plaintiff  was  greatly  hurt,  wounded,  and  the  bones  of  one  of 


882  ANNOTATED   FORMS   OF    PLEADING   AND    PRACTICE 

his  limbs  was  shattered,  broken  and  fractured  in  two  places, 
and  divers  other  bones  of  his  body  were  wrenched  and  broken, 
and  he  became  and  was  sick,  sore,  lame  and  disordered,  and  so 
remained  for  a  long  space  of  time,  to  wit,  from  thence  hithtrto, 
and  has  been  and  will  continue  to  be  permanently  crippled  and 
disabled,  and  has  suffered  great  pain  and  misery,  and  has  been 
compelled  to,  and  did  pay  out  divers  large  sums  of  money,  to 

wit, dollars  for  nurse  hire  and  physician's  bills 

in  endeavoring  to  be  cured  and  healed  of  his  said  injuries. 
Wherefoie,  etc. 

1529  Electric  light,  action 

A  municipality  which  is  engaged  in  furnishing  electric  light- 
ing is  not  liable  for  negligence  of  its  officers,  agents  and  employ- 
ees when  furnishing  the  service  for  lighting  its  public  streets, 
public  places  and  buildings,  but  it  is  liable  for  such  negligence 
when  furnishing  light  to  its  inhabitants  for  compensation.^^'^ 

ELECTRIC  POWER  INJURIES 

1530  Bridge  wires,  dangerous  proximity,  Narr.  (W.  Va.) 

For  this,  to  wit,  that  on,  to  wit,  the  ....  day  of , 

19. .,  the  date  of  the  committing  by  said  defendant  of  the  griev- 
ances hereinafter  mentioned,  said  defendant  was  in  possession 
of  and  maintaining  and  operating  as  owner  a  certain  power- 
house and  electric  light  plant  for  the  purpose  of  operating  its 
cars  and  the  manufacture  and  sale  of  electricity,  electric  light 
and  power  for  hire,  profit  and  reward  to  the  said  defendant  in 

that  behalf,  in  the  town  of , county.  West 

Virginia,  and  elsewhere ;  and  was  then  and  there  the  owner  and 
maintaining  and  operating  in  connection  therewith  a  certain 
system  of  wires  running  with,  over,  along  and  upon  the  streets 
in  said  town,  consisting  of  certain  wires  running  from  its  said 
powerhouse  as  feed  wires;  and  certain  wires  running  along  the 
streets  in  said  town  used  in  the  operating  of  its  cars  along  the 
line  of  its  railroad ;  and  of  certain  wires  running  from  its  said 
powerhouse  along  the  streets  in  said  town  used  by  defendant 
for  the  purpose  of  doing  a  general  electric  light  and  power 
business  in  said  town  and  elseAvhere,  and  of  a  certain  wire,  a 
part  of  said  system  of  wires,  hung  and  suspended  over,  along 
and  upon  certain  poles  owned,  maintained  and  controlled  by 
defendant  upon  and  over  the  streets  in  said  town  called  the 

road,  sometimes  known  as  the    

pike,  which  road  passes  through  the  said  town  of 

and  crosses creek  in  said  town  at  a  point  near 

162  Hodgins  v.  Bay  City,  156  Mich. 
687^  692   (1909). 


PERSONAL   INJURIES  883 

the  mouth  of  said  creek  by  means  of  a  bridge,  which  bridge 
is  an  arched  bridge  having  its  highest  point  at  or  near  its 

center  and  is  known  as  the  " bridge"  and  is  a  part 

of  and  a  continuation  of  said road ;  that  said  road 

and  said  bridge  are  and  have  been  a  public  highway  in  said 

town  continuously  for  more  than years  last  past,  and 

have  been  continuously  used  and  traveled  as  a  public  street 
and  highway  of  said  town  by  its  citizens,  as  well  as  by  other 
persons,  for  the  period  last  before  named ;  that  the  school  house 
in  said  town  w^as  on  the  day  and  year  aforesaid  situate  near 
the  said  bridge,  and  said  bridge  was  constantly  used  by  school 
children,  as  well  as  others,  in  going  to  and  from  said  school; 
that  the  coping  on  the  easterly  side  of  said  bridge  was  fre- 
quently used  by  school  children  and  other  children  as  also  by 
adults  in  crossing  said  bridge ;  that  said  last  named  wire  ex- 
tended along  said road  on  said  poles  to  a  pole 

owned  by  defendant  situate  near  the  northerly  abutment  of 
said  bridge  at  the  easterly  side  thereof,  and  thence  stretched 
across  the  said  creek  to  a  pole  owned  by  defendant  near  the 
southerly  abutment  of  said  bridge  and  at  the  easterly  side 
thereof;  that  both  the  said  poles  and  the  said  wire  were  situate 
on  said  day  and  for  a  long  time  prior  thereto  in  close  and 
dangerous  proximity  to  the  easterly  side  of  said  bridge;  that 
the  center  of  said  bridge  is  near  the  center  between  the  said 
poles,  and  the  said  center  of  said  bridge  is  the  highest  point 
of  the  same ;  that  in  passing  over  said  creek  from  said  pole 
on  the  northerly  side  thereof,  the  said  wire  passed  in  close  and 
dangerous  proximity  to  the  portion  of  said  bridge  at  and  near 
the  center  on  the  easterly  side  thereof;  that  the  said  easterly 
side  of  said  bridge  is  the  side  of  the  same  designed  for  pedes- 
trians and  is  the  side  on  which  the  foot  passage  way  is  located ; 
that  said  easterly  side  was,  on  the  day  and  year  aforesaid  and 
prior  thereto,  and  now  is,  the  side  of  said  bridge  used  by 
pedestrians  in  crossing  the  same ;  and  that  the  said  wire  is  the 
middle  wire  of  the  three  wires  of  defendant  passing  over 
said  creek  at  the  easterly  side  of  said  bridge  and  at  and  near 
said  central  point. 

Plaintiff  further  avers  that  said  defendant  on  the  day  and 
year  aforesaid,  owned,  maintained,  operated  and  controlled 
said  wire  in  manner  aforesaid  as  a  part  of  its  said  system  of 

wires  in  said  town  of ,  for  the  purpose  of  its  said 

business  and  for  hire,  profit  and  reward  to  the  said  defendant 
in  that  behalf;  that  said  wire  was  then  and  there  heavily 
charged  with  electric  current,  and  that  it  then  and  there  became 
and  was  the  duty  of  said  defendant  to  use  such  care  as  is 
required  by  law  to  so  operate,  control,  insulate  and  maintain 
said  wires  as  to  prevent  the  same  from  injuring  pedestrians 
and  others  lawfully  passing  along  said  bridge,  it  being  a  part 
of  said road  and  a  public  street  and  a  highway. 

Plaintiff  further  says  that  through   said  wire,   passing  as 


884  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

aforesaid  within  near  and  dangerous  proximity  to  said  bridge, 
defendant,  prior  to  and  on  the  day  and  year  aforesaid,  was 
and  had  been  transmitting  and  distributing  electricity  in  large 
and  deadly  quantities  for  its  use  and  purposes  as  aforesaid. 

Plaintiff  further  alleges  that  all  the  aforesaid  facts  were 
prior  to  and  at  said  times  well  known  to  defendant. 

Plaintiff  further  says  that  it  was  the  duty  of  said  defendant 
to  have  insulated  said  wire  and  to  have  maintained  such  insula- 
tion so  that  persons  coming  in  contact  therewith  in  crossing  said 
bridge  on  said  highway  or  in  proximity  thereto  would  not  be 
injured  by  coming  in  contact  with  said  wire;  that  it  was  also 
the  duty  of  said  defendant  to  have  inspected  said  wire  at  rea- 
sonable intervals  to  see  that  the  same  continued  to  remain  in 
condition  so  that  any  former  insulation,  if  it  had  become  defect- 
ive to  such  an  extent  as  to  expose  said  wire,  should  be 
remedied  and  repaired  so  that  thereafter  persons  in  crossing 
said  bridge  or  in  proximity  thereto  should  not  be  injured  by 
coming  in  contact  with  such  wire ;  that  it  was  also  the  duty  of 
said  defendant  where  said  wire  crossed  said  creek,  and  at  and 
near  said  high  point  of  said  bridge,  to  have  placed  and  main- 
tained said  wire  at  a  distance  from  said  bridge  and  at  a 
lieight  above  said  bridge,  or  either,  as  would  prevent  pedes- 
trians from  coming  in  contact  with  the  same  in  crossing  said 
bridge;  that  it  was  also  the  duty  of  said  company  to  insulate 
its  said  system  of  wires,  and  each  of  them,  at  all  points  where 
said  wires,  or  either  of  them,  passed  along  or  in  dangerous 
proximity  to  said  passage  way  on  said  bridge ;  and  that  it  was 
also  the  duty  of  defendant  to  see  that  said  insulation  continued 
to  be  properly  maintained  so  that  persons  crossing  said  bridge 
near  said  wires,  or  in  proximity  thereto,  vshould  not  be  injured 
by  coming  in  contact  with  said  wires,  or  any  of  them,  at  and 
near  said  point  near  the  center  of  said  bridge. 

Yet,  the  said  defendant,  well  knowing  the  premises,  upon  the 
day  and  year  aforesaid,  wholly  disregarding  its  duties,  and  each 
of  them,  aforesaid,  to  the  plaintiff's  decedent,  did,  wickedly, 
carelessly,  negligently  and  unlawfully  without  any  notice  to 
the  plaintiff's  decedent,  suffer  the  wire  aforesaid  passing  along 
and  in  dangerous  proximity  to  said  passage  way  on  said  bridge, 
near  the  center  thereof  at  the  easterly  side  thereof  to  sag  and 
to  be  without  proper  insulation  and  protection  at  and  near 
said  point  near  the  center  at  the  easterly  side  of  said  bridge, 
and  permitted  the  said  wire  at  or  near  the  center  of  said 
bridge  near  the  easterly  side  thereof,  to  sag,  to  such  an  extent 
and  to  be  so  poorly  insulated,  or  without  insulation  to  such  an 
extent  that  by  means  whereof,  on  the  day  and  year  aforesaid, 
the  plaintiff's  decedent,  in  crossing  said  bridge  on  the  day  and 

year  aforesaid,  in  passing  from  said  school  house  in , 

along  said road  to  his  home  in  said  town,  came 

in  contact  with  said  wire  at  or  near  said  center  of  said  bridge 
on  the  easterly  side  thereof,  which  wire  was  then  and  there 


PERSONAL   INJURIES  885 

charged  with  a  dangerous  and  deadly  current  of  electricity, 
and  plaintiff's  decedent  then  and  there  by  coming  in  contact 
with  said  wire,  without  any  fault  on  his  part,  thereby  received 
the  electric  current  aforesaid  into  his  body,  by  reason  of  which 
he  was  instantly  wounded,  hurt,  and  injured  and  became  pow- 
erless to  move  himself  away  from  the  same  and  continued  to 
remain  in  contact  with  said  wire  by  reason  of  being  powerless 
as  aforesaid  to  move  therefrom  until  such  electric  current  had 
passed  in  and  through  his  body  to  such  an  extent  that  he 
then  and  there  died. 

Plaintiff  avers  that  the  death  of  his  decedent  was  caused  by 
the  negligence,  carelessness  and  unlawful  acts  of  the  defendant 
aforesaid  and  its  total  disregard  of  its  duties  to  plaintiff's 
decedent  as  aforesaid. 

Plaintiff  avers  that  his  decedent,  a  boy  of years  of 

age,  at  the  time  of  coming  in  contact  with  said  wire  of  defend- 
ant, was  passing  from  the  said  school  house  where  he  had  been 
assisting  his  mother,  the  janitress  of  said  school  building,  along 

said road  to  his  home ;  that  the  time  was  about 

o'clock  in  the  evening  on  the  day  and  year  aforesaid,  and 

that  the  said  decedent  at  the  time  of  said  injury  and  prior 
thereto,  or  at  any  other  time,  had  no  knowledge  of  the  condi- 
tion of  the  said  wire  as  to  its  sagging  and  insulation,  or  either, 
and  had  no  knowledge  that  the  defendant  had  not  performed 
the  duties  imposed  upon  it  by  law  as  aforesaid  with  reference  to 
himself  or  any  other  person  or  persons  crossing  along  said  high- 
way and  over  said  bridge  and  in  the  proximity  of  said  wire. 
Wherefore,  the  plaintiff'  claims  damages  to  the  amount  of 

dollars ;  and  the  demand  of  this  suit  claimed  and 

sought  to  be  recovered,  is  claimed  and  sought  to  be  recovered 

on  behalf  of  the  mother  of  said  decedent  and  his sisters 

; ,  who  are  the  sole  heirs  and  distributees  of  said 

decedent  as  by  law  provided. 

And  thereupon  plaintiff'  says  that  by  reason  of  the  premises, 
matters  and  things  in  said  count  mentioned,  and  by  force  of 
the  statute  in  such  cases  made  and  provided,  an  action  has 
accrued  to  him  as  such  administrator  as  aforesaid,  to  have  and 
demand  of  and  from  the  said  defendant,  for  and  by  reason  of 
the  said  grievances,  wrongs  and  injuries  in  said  count  men- 
tioned, damages  to  the  amount  of dollars.    And 

therefore  he  brings  this  suit.i*^^ 

1531  Bridge  wires,  insulation  defective,  Narr.  (Md.) 

For  that  heretofore,  to  wit,  on  the day  of 

in  the  year  19. .,  the  said  defendant  maintained,  operated  and 
controlled  a  system  of  wires  in  the  city  of , 

163  Thornburg  v.  City  &  Elm  Grove 
E.  Co.,  65  W.  Va.  379  (1909). 


886  ANNOTATED   FORMS   OF   PLEADING   ANU    I'UACTICE 

Maryland,  and  in  the  village  of in  the 

election  district  of county  aforesaid  in  said  state, 

and  upon  a  certain  public  bridge  then  and  now  spanning  a 

navigable  stream  called creek  in  said  county, 

which  said  bridge  then  and  there  connected  said  city  of 

and  said  village  of ,  and  was  and  is,  a  pub- 
lic highway,  which  said  wires  were  hung  and  suspended  over 
and  upon  certain  poles  maintained  and  controlled  by  the  de- 
fendant, upon  and  over  the  streets  of  said  city  and  village  and 
upon  said  bridge,  for  the  purpose  of  doing  a  general  electric 
light  business  in  said  city  and  village  for  hire,  profit  and 
reward  to  said  defendant  in  that  behalf;  that  it  then  and  there 
was  the  duty  of  said  defendant  to  use  such  care  as  is  required 
by  law  to  so  control,  operate  and  maintain  said  wires  as  to 
prevent  the  same  from  coming  into  contact  with  the  pedestrians 
lawfully  using  and  passing  along  the  streets  of  said  city  and 
village  and  lawfully  using  and  pasing  over  the  said  bridge, 
which  said  bridge  was  then  and  there  a  public  highway.  Yet 
the  said  defendant,  not  regarding  its  duty  in  that  behalf,  did 
not  use  the  care  required  by  law  to  so  operate,  control  and 
maintain  said  wires  as  to  prevent  the  same  from  coming  into 
contact  with  pedestrians  lawfully  upon  and  passing  over  said 
bridge  as  aforesaid,  but  on  the  contrary,  carelessly  and  negli- 
gently failed  so  to  do,  and  in  disregard  of  its  duty  in  that 
behalf  carelessly,  negligently,  unlawfully  and  in  disregard  of 
the  safety  of  pedestrians  lawfully  upon  and  passing  over  said 
bridge  so  maintained,  controlled  and  operated  its  said  wires  on 
and  over  said  bridge  that  the  said  wires  became  and  were  with- 
out proper  insulation  whereby,  and  by  reason  whereof,  contact 
with  said  wires  was  dangerous  to  life,  and  which  said  danger- 
ous condition  of  the  said  wires  was  then  and  there  known  to 
the  defendant,  and  had  been  so  known  to  the  defendant  for  a 
long  time  previously  to  the  injuries  hereinafter  complained  of, 
to  wit,  for  the  period  of wrecks;  and  also  the  defend- 
ant knowingly,  carelessly,  and  negligently  suffered  and  per- 
mitted its  said  wires  on  said  bridge  to  be  and  remain  in  said 

dangerous  condition  on  said day  of in 

the  year  19.  .  ;  and  that  by  reason  thereof  the  plaintiff  on  said 

day  of in  the  year  19. .,  while  lawfully 

using  and  passing  over  said  bridge  without  any  negligence  on 
his  part,  came  into  contact  with  said  wires,  which  said  wires 
w^ere  then  and  there  heavily  charged  with  electric  current, 
whereby  he  became  and  w^as  greatly  shocked  and  stunned  and 
his  life  greatly  endangered,  and  w4iereby  also  his  hands  were 
severely  burned  and  injured  and  he  w^as  caused  to  suffer  and 
did  suffer  great  bodily  pain  and  mental  anguish.  And  the 
plaintiff  claims  therefor dollars  damages. 

1532  Poles;  cross-arms  defective,  Narr.  (Miss.) 

Defendant  is  a  public  service  corporation,  chartered  by  the 
state  of  Mississippi  and  domiciled  at and  engaged 


PERSONAL  INJURIES  887 

among  other  things,  in  the  business  of  operating  an  electric 
lighting  system  in  said  city.  It  has  its  poles  and  wires  in  the 
various  streets  of  the  city,  and  has  strung  on  said  poles  a  great 
many  wires,  parallel  to  each  other  and  also  many  connecting 
wires  leading  into  the  buildings  along  said  street.  These  wires 
were  used  for  various  purposes,  some  for  arc  lights  and  for 
trolley  wires  carrying  each  of  them  a  very  heavy  current  or 
voltage  of  electricity  sufficient  to  cause  instant  death  if  it 
should  enter  into  one's  body,  some  for  motor  fans  carrying 
a  less  current  but  still  sufficient  to  cause  death  from  contact, 
others  carrying  a  light  and  not  dangerous  current  for 
the  incandescent  lights  in  the  homes,  stores  and  offices  of 
consumers. 

One  of  the  defendant's  poles  is  placed  at  the  intersection  of 

and streets,  which  is  in  the  part  of 

the  business  district,  and  on  said  poles  there  were  a  dozen  or 
more  wires.  These  rested  on  and  were  supported  by  cross- 
arms  or  wood  fastened  to  the  pole  and  which  when  properly 
constructed  with  due  regard  to  the  safety  of  the  employees 
who  might  go  on  them  in  discharge  of  duty,  are  mortised  into 
the  pole  and  bolted  to  it  securely  braced  by  iron  bars  or  rods 
running  from  either  side  of  the  cross-arm  and  connecting  below 
the  same  at  the  pole  to  which  they  are  securely  bolted,  or  else 
the  cross-arms  are  braced  by  wooden  pieces,  nailed  or  bolted 
to  other  cross-arms  above  or  below  on  the  same  pole.     The 

wires  on  said  pole  ran  both  east  and  west  along 

street  and  also  north  along street  thus  necessitat- 
ing several  cross-arms  running  north  and  south  and  several  run- 
ning east  and  west,  making  a  net  work  of  wires.  It  was  often 
necessary  to  adjust  or  repair  these  wires  and  their  fastenings 
and  make  connections  with  them,  and  to  do  this,  it  was  neces- 
sary for  linemen  or  other  employees  of  the  defendant  to  climb 
up  on  pole  and  sit  or  stand  on  cross-arms.  It  was  therefore  nec- 
essary that  these  cross-arms  be  constructed  and  kept  by  the 
defendant  securely  braced  and  so  firmly  affixed  to  the  pole 
and  adjusted  so  that  it  would  not  turn  under  the  weight  of  an 
employee  sitting  on  it  and  reaching  out  from  it,  as  it  had  to  be 
done,  in  fixing  wires,  making  connections  or  wrapping  wires. 

On  the  day  of  ,  19. .,  , 

unmarried  son  of and  a  brother  of  the  other 

plaintiffs  was  in  the  employ  of  the  defendants  as  a  lineman  or 
member  of  its  force  in  charge  of  the  stringing  and  adjusting 
and  repairing  of  wires  and  was  ordered  by  his  superior  officer, 
the  foreman  of  the  linemen,  to  climb  up  on  said  pole  and  con- 
nect or  adjust  a  wire  thereon.  In  the  discharge  of  this  duty  he 
was  sitting  on  one  of  the  cross-arms  aforesaid  and  was  reach- 
ing  over  to  the  wire  in  question,  his  feet  resting  on  the  cross- 
arm  underneath  when  the  cross-arm  turned  under  him,  causing 


888  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

his  hand  or  foot  or  both  to  fall,  slip  and  come  in  contact  with 
two  live  or  charged  wires  in  such  a  way  as  to  short  circuit  the 

current  through  his  body,  causing  instant  death.     Said 

was years  old,  was  strong,  healthy,  vigor- 
ous, and  earning  and  capable  of  earning to 

dollars  per  month,  and  having  the  expectancy  of  life 

of  a  healthy  man  of  his  age. 

The  cause  of  his  death  was  the  electrical  current  aforesaid 
entering  his  body,  and  the  cause  of  that  was  the  gross  negli- 
gence of  the  defendants  in  the  following  respects:  in  failing 

to  provide  a  safe  place  for  said ,  its  employee,  to 

work,  in  this,  that  it  failed  to  provide  and  maintain  the  usual 
and  ordinary  and  necessary  braces  for  said  cross-arms,  by  rea- 
son whereof  it  turned  under  him  while  on  it  in  the  due  and 
proper  discharge  of  his  duty  causing  contact  with  the  live 
wires  as  above  mentioned;  in  failing  to  properly  insulate  and 
to  maintain  insulation  on  its  wires  at  and  near  the  cross-arms 
so  that  the  contact  caused  as  aforesaid  would  be  harmless; 
in  not  cutting  off  entirely,  the  current  from  said  wires  while 

being  fixed  and  adjusted  by  said ,  so  that  the 

discharge  of  the  said  duty  committed  to  him  would  be  free 

from  such  danger ;  in  not  acquainting with  the 

fact  that  the  wires  were  dangerously  charged  and  thus  putting 
him  on  his  guard  to  prevent  all  danger  that  might  be  and 
was  by  him  incurred. 

Plaintiffs  are  advised  and  say  that  by  reason  of  the  above 
mentioned  gross  negligence  of  the  defendant  and  conseciuent 

death  of  said ,  plaintiffs'  parents  and  said  decedent's 

only  brothers  and  sisters  are  entitled  to  recover  of  the  defendant 
all  damages  of  every  kind  to  the  decedent  and  all  damages  of 
every  kind  to  any  and  all  parties  interested  in  this  suit.    These 

damages  amount  to  a  large  sum,  to  wit, dollars 

for  which  sum  plaintiffs  sue  and  demand  judgment  with  inter- 
est and  costs. 

1533  Poles  defective,  action 

A  telephone  company  is  not  liable  for  an  injury  sustained  by 
one  of  its  linemen  caused  by  the  falling  of  a  rotten  pole,  which 
the  lineman  was  bound,  by  the  telephone  company's  rules,  to 
inspect  and  test  before  climbing.^*^^ 

1534  Poles;  guards  lacking,  Narr.  (111.) 

For  that  whereas  heretofore,  on,  to  wit,  the day  of 

,  19. .,  the  defendant,  D,  was  a  corporation  and 


164  De  Frates  v.  Central  Union 
Telephone  Co.,  243  111.  356,  360 
(1910). 


PERSONAL   INJURIES  889 

as  such  owned,  controlled  and  operated  certain  lines  of  tele- 
graph wires  and  poles  and  other  apparatus  necessary  for  the 
maintenance   and   operation   of   said   telegraph    lines   in   and 

through  the  county  of and  state  of  Illinois,  and 

the  defendant,  M,  at  the  time  hereinafter  mentioned  was  a  cor- 
poration and  as  such  owned,  controlled  and  operated  a  certain 

line  of  electric  railway  in  and  through  the  county  of 

and  state  of  Illinois,  together  with  the  tracks,  wires  and  poles 
necessary  for  the  operation  of  said  railway  and  the  transmis- 
s;ion  of  electric  power  used  in  operating  its  cars  and  motors 
over  and  upon  said  railway ;  that,  on,  to  wit,  the  time  aforesaid, 
"Ihe  defendant,  D,  was,  with  the  knowledge  and  consent  of  M, 
engaged  in  stringing  and  attaching  certain  wires  to  and  upon 
a  certain  arm  attached  to  a  certain  pole  which  said  arm  and 
l)ole  were  owned  by  M  and  were  situated,  to  wit,  on  or  near 

avenue,  near  the ,  at , , 

county,  Illinois;  and  that,  on,  to  wit,  the  time  and  place 
aforesaid,  the  said  plaintiff  was  in  the  employ  of  the  defend- 
ant, D,  as  a  lineman,  and  while  in  the  exercise  of  ordinary  care 
and  caution  for  his  own  safety,  plaintiff  was  ascending  said 
pole  for  the  purpose  of  stringing  and  attaching  said  wires  to 
the  said  arm  of  said  pole,  said  defendants,  and  each  of  them, 
then  and  there  carelessly  and  negligently  failed  to  furnish 
plaintiff  a  safe  place  in  which  to  do  said  work  and  to  warn 
plaintiff  of  hidden  and  unseen  dangers  incident  to  said  work 
there,  whereby  plaintiff  then  and  there  came  in  contact  with  a 
certain  wire  or  wires  suspended  across  and  attached  to  a  cer- 
tain arm  on  said  pole,  which  said  pole,  arm  and  wire  or  wires 
last  aforesaid,  were  owned,  controlled,  and  operated  by  said 
defendant  M,  and  said  wire  or  wires  were  heavily  charged  with 
electricity,  exposed  and  uninsulated,  and  said  defendants,  and 
each  of  them,  well  knew,  or  by  the  exercise  of  ordinary  care 
might  have  known,  that  said  wires  were  so  heavily  charged, 
exposed,  uninsulated  and  dangerous,  and  were  unknown  to  the 
plaintiff,  but  said  defendants,  and  each  of  them,  then  and  there 
carelessly  and  negligently  failed  to  insulate  said  wire  or  wires 
last  aforesaid,  or  otherwise  protect  and  warn  plaintiff  of  the 
danger  of  coming  in  contact  with  said  wire  or  wires,  and  that 
by  and  in  consequence  of  the  joint  and  concert  careless  and 
negligent  conduct  of  said  defendants  in  that  behalf,  as  afore- 
said, plaintiff  was  then  and  there  severely  and  dangerously 
and  violently  shocked  and  burned. 

2.  That,  on,  to  wit,  the  time  and  place  aforesaid,  and  while 
the  plaintiff  was  in  the  necessary  discharge  of  his  duties,  the 
foreman  of  the  defendant,  D,  who  was  then  and  there  in  author- 
ity over  plaintiff,  carelessly  and  negligently  ordered  plaintiff 
to  ascend  said  pole  for  the  purpose  of  stringing  and  attaching 
said  wires  to  said  arm  on  said  pole,  and  while  plaintiff,  in  the 
exercise  of  ordinary  care  and  caution  for  his  own  safety,  was 
ascending  said  pole  pursuant  to  the  order  of  said  foreman,  to 


890  ANNOTATED    FORMS   OF    PLEADING   AND   PRACTICE 

string  and  attach  said  wires,  as  aforesaid,  the  plaintiff  then 
and  there  came  in  contact  with  a  certain  other  wire  or  wires, 
heavily  charged  with  electricity,  exposed,  uninsulated  and 
dangerous,  that  were  suspended  across  and  attached  to  a  cer- 
tain other  arm  on  said  pole,  which  said  arm,  pole  and  wires 
last  aforesaid,  were  owned,  controlled  and  operated  by  defend- 
ant M,  and  said  defendants  and  each  of  them  well  knew,  or 
by  the  exercise  of  ordinary  care  might  have  known,  that  said 
wires,  last  aforesaid,  were  heavily  charged  with  electricity, 
exposed,  uninsulated  and  dangerous,  but  which  was  unknown 
to  the  plaintiff,  and  the  defendant  M  well  knew,  or  by  the 
exercise  of  ordinary  care  might  have  known,  that  the  foreman 
of  the  defendant  D  would  order  plaintiff  to  ascend  said  pole 
for  the  purpose  aforesaid,  and  said  defendants,  and  each  of 
them,  carelessly  and  negligently  failed  to  insulate  said  wire  or 
wires,  last  aforesaid,  or  otherwise  protect  and  warn  plaintiff 
of  the  danger  of  coming  in  contact  with  said  wire  or  wires,  and 
by  and  in  consequence  of  the  joint  and  concert  careless  and 
negligent  conduct  of  the  defendants  in  that  behalf,  as  afore- 
said, plaintiff  was  then  and  there  and  thereby  severely  and 
dangerously  and  violently  shocked  and  burned. 

3.  That,  on,  to  wit,  the  time  and  place  aforesaid,  while  plain- 
tiff, in  the  exercise  of  ordinary  care  and  caution  for  his  own 
safety,  was  ascending  said  pole  for  the  purpose  of  stringing 
and  attaching  said  wire  to  an  arm  of  said  pole,  it  became  and 
was  necessary  for  plaintiff  to  ascend  above  a  certain  other 
wire  or  wires  heavily  charged  with  electricity,  exposed,  unin- 
sulated and  dangerous,  and  were  suspended  across  and  at- 
tached to  a  certain  other  arm  on  said  pole,  Avhich  said  arm  was 
attached  to  said  pole  below  the  arm  to  which  plaintiff  was  to 
string  and  attach  the  wire  aforesaid,  and  which  were  owned, 
controlled  and  operated  by  defendant  M,  and  said  defendants, 
and  each  of  them,  well  knew,  or  by  the  exercise  of  ordinary 
care  might  have  known,  that  said  wires  last  aforesaid  were 
heavily  charged  with  electricity,  exposed,  uninsulated  and 
dangerous  and  were  unknown  to  plaintiff,  and  the  defendants 
and  each  of  them  carelessly  and  negligently  failed  to  have  said 
pole  stencilled,  or  to  have  signs  of  danger  on  said  arm  or  pole 
so  as  to  warn  plaintiff  of  hidden  and  unforeseen  peril  and 
danger,  and  to  warn  plaintiff  so  that  he  might  avoid  coming 
in  contact  with  said  wire  or  wires,  which  were  heavily  charged 
with  electricity,  exposed,  uninsulated  and  dangerous,  and  the 
defendants  and  each  of  them  carelessly  and  negligently  failed 
to  insulate  said  wire  or  wires  last  aforesaid,  or  otherwise  pro- 
tect or  warn  plaintiff  of  the  danger  of  coming  in  contact  with 
said  wire  or  wires,  and  by  and  in  consequence  of  the  joint  and 
concert  careless  and  negligent  conduct  of  the  defendants,  as 
aforesaid,  plaintiff  was  severely  and  dangerously  and  violently 
shocked  and  burned. 

By  reason  whereof  plaintiff  was  then  and  there  severely  and 


PERSONAL  INJURIES  891 

dangerously  shocked,  burned,  cut,  bruised,  strained,  wounded, 
and  injured  both  internally  and  externally,  and  plaintiff's 
back,  spine,  brain  and  nervous  system  were  then  and  there 
and  thereby  severely  and  permanently  and  dangerously  in- 
jured, and  divers  bones  in  plaintiff's  limbs  were  thereby  then 
and  there  fractured  and  broken,  and  plaintiff's  left  arm  was 
then  and  there  and  thereby  severely  shocked,  bruised  and 
burned  so  that  amputation  thereof  became  and  was  necessary 
and  was  performed,  and  plaintiff  was  otherwise  severely,  dan- 
gerously and  permanently  injured,  internally  and  externally. 
That  on  account  of  said  injuries,  caused  as  aforesaid,  plaintiff 
became  sick,  sore,  lame  and  disordered  and  so  remained  for 
a  long  space  of  time,  to  wit,  from  thence  hitherto,  during  which 
time  he  suffered  great  bodily  pain  and  mental  anguish,  and 
still  is  suffering  intensely  and  is  languishing  in  body  and  in 
mind  and  in  the  future  will  continue  to  suffer  from  the  effects 
of  said  injury,  caused  as  aforesaid,  and  will  be  crippled  and 
maimed  for  the  rest  of  his  natural  life,  and  was  thereby  ren- 
dered impotent  for  the  rest  of  his  natural  life,  and  on  account 
of  said  injuries  his  mind  has  been  severely  impaired  and 
injured.  That  on  account  of  said  injuries  caused  as  aforesaid, 
and  the  sickness  resulting  therefrom,  plaintiff  was  compelled 
to,  and  did  pay  out  and  become  liable  for  the  payment  of  large 
sums  of  money  for  doctors'  bills,  drugs,  medicines,  nursing, 
care  and  attention  in  and  while  attempting  to  cure  himself  and 
to  be  cured  of  the  wounds,  bruises,  and  injuries  as  aforesaid, 
and  was  compelled  to,  and  did  expend  and  become  liable  for 
the  payment  of  large  sums  of  money  in  and  while  procuring 
and  hiring  others  to  do  work  for  him  which  prior  to  receiving 
said  injuries  he  could  and  did  do  for  himself.  That  prior  to 
said  injuries  plaintiff  was  a  man  of  good  health,  strong  and 

robust,  and  his  services  were  of  the  value  of and 

he  could  and  did  earn,  to  wit, ($ )  dollars 

per  month,  but  that  since  said  injuries  and  as  a  direct  result 
thereof  he  has  been  unable  to  do  any  work  or  to  earn  anything 
whatever  or  to  transact  any  business,  and  has  on  account  of 
said  injuries  been  hindered  and  prevented  from  saving  and 
accumulating  divers  large  sums  of  money  and  divers  great 
gains  and  profits  which  he  could  have  otherwise  earned,  saved 
and  accumulated,  to  the  damage  of  the  plaintiff  in  the  sum 

of ($ )  dollars,  and  therefore  he  brings 

his  suit,  etc. 

I 

For  that  whereas,  heretofore,  on,  to  wit, ,  19-  •, 

and  for  a  long  space  of  time  prior  thereto,  to  wit,  for  the  space 
of years,  at,  to  wit,  the  county  aforesaid,  the  defend- 
ant was  possessed  of  and  using  a  certain  street  railway  ex- 
tending in  and  along  parts  of   street  in  the 

city  of from  street  south  to   

avenue  which  railway  over  said  street  it  operated  by 

means  of  electricity  carried  over  head  on  cables  supported  by 


892  ANNOTATED  FORMS  OF  PLEADING  AND   PRACTICE 

poles,  and  which  said  railway  and  use  of  said  parts  of  said 

street  aforesaid  it  acquired  from  the   , 

subject  to  all  the  duties  and  obligations  of  the  latter  as  to  said 

parts  of  said  street  to  the  city  of and  those  using 

said  street  or  any  parts  thereof,  amongst  which  was  the  duly 
imposed  by  an  ordinance  of  said  city  passed  by  the  city  council 

thereof, ,  19.  .,  and  approved  by  the  mayor  of 

said  city, ,  19 . . ,  and  accepted  by  said 

,  on ,  19 . . ,  in  words  and  figures  as  follows, 

to  wit:     (Set  out  acceptance)  and  which  ordinance  was  duly 

published  by  said  city  and  now  appears  on  page , , 

,  and of  the  book  entitled , 

published section ,  which  ordinance  reads 

as  follows,  to  wit :     (Set  out  ordinance). 

Whereby  it  became  and  was  the  duty  of  said 

and  the  defendant  as  its  successor  to  stretch  and  maintain  a 
suitable  guard  wire  along  and  above  its  electric  cable  on  said 

street  at  the  intersection  thereof  with  the  north 

line  of street  and  for  a  short  distance  south 

thereof  as  then  and  there  were  on ,  19 .  . ,  and  con- 
tinued to  be  until ,  19. .,  other  wires  belonging  to 

other  companies  amongst  which  were  those  of  the .., 

suspended  above  the  electric  cables  of  defendants  street  rail- 
way company  running  east  and  west  over  the  said  point  or 
place  aforesaid ;  yet,  the  defendant  neglecting  its  duty  in  that 
behalf  failed  and  neglected  to  stretch  or  maintain  a  suitable 
guard  wire  above  its  said  cable  at  the  place  aforesaid. 

By  reason  whereof  the  plaintift'  in  the  course  of  his  duty, 

as  an  employee  of  the  said ,  in  stretching  and 

taking  down  and  handling  wires  of  said  latter  company  cross- 
ing over  said  overhead  electric  wires  and  cable  of  defendant 
at  the  place  aforesaid,  on,  to  wit,  the  day  and  year  last  afore- 
said, while  in  the  exercise  of  due  care  and  caution  for  his  own 

safety,  by  reason  of  one  of  the  wires  of  said , 

on  which  he  was  working  breaking  and  falling  down  upon 
the  said  overhead  wire  or  cable  of  said  defendant  which  latter 
was  then  and  there  charged  with  electricity,  the  current  of 
electricity  was  conveyed  therefrom  by  said  fallen  wire  to  the 
net  work  of  wires  where  plaintiff  was  necessarily  standing  and 
working,  in  the  performance  of  his  duties  aforesaid ;  and  said 
electric  current  was  thereby  then  and  there  carried  into  and 
against  his  body  and  person  and  he  was  thereby  then  and  there 
badly  burnt  on  his  breast  and  right  arm,  his  left  knee,  right 
leg  below  the  knee,  his  right  hand  and  back,  and  his  left  tes- 
ticle so  badly  burnt  that  it  had  to  be  removed  by  an  operation ; 
and  thereby  and  by  means  thereof  the  plaintiff  then  and  there 
became  and  was  sick,  lame,  and  disordered  and  so  remained 
for  a  long  space  of  time,  to  wit,  from  thence  hitherto,  during 
all  of  which  time  plaintiff  suffered  great  pain  and  was  hin- 
dered and  prevented  from  transacting  and  attending  to  his 


PERSONAL  INJURIES  893 

business,  work  and  affairs  and  lost  and  was  deprived  of  divers 
great  gains  and  wages  that  he  might  and  otherwise  would 
have  made  and  acquired,  and  he  is  permanently  injured  and 
crippled;  and  also  thereby  the  plaintiff  was  obliged  to  and 
did  then  and  there  incur  divers  large  sums  of  money  for  hospi- 
tal and  hospital  charges,  nurses,  nursing,  and  medicine  and 

medical  attendance,  to  wit,  the  sum  of dollars 

in  endeavoring  to  be  cured  and  healed  of  the  said  wounds  and 
injuries  so  received  as  aforesaid.    To  the  damage,  etc. 

(Virginia) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  or  before  the  .... 
day  of ,  19 .  . ,  the company  of  Vir- 
ginia maintained,  operated,  and  controlled  a  certain  system  of 
wires  and  cables  in  the  city  of in  the  state  of  Vir- 
ginia upon,  over  and  along  a  certain  street  in  said  city  called 

and  known  as   avenue,  which  wires  and  cables 

were  strung  and  suspended  on  and  along  certain  poles  of  said 
company  and  which  wires,  cables  and  poles  were  so  main- 
tained and  controlled  by  said  company  upon,  over  and  along 

said avenue  for  the  purpose  of  doing  a  general 

telephone  and  telegraph  business  in  said  city,  in  pursuance  of 
authority  already  theretofore  granted  said  company  by  said 
city  for  that  purpose,  and  by  virtue  of  said  authority,  and  in 
the  prosecution  of  its  said  business,  said  company  had  the  legal 
right  to  and  did  from  time  to  time  have  its  agents,  servants 
and  employees  to  go  up  and  upon  said  poles  and  perform  work 
on  its  said  wires,  cables  and  poles,  removing  and  changing  old 
wires  and  cables  and  erecting  on  said  poles  new  wires  and 
cables  and  doing  such  other  work  on  said  wires,  cables  and 
poles  as  pertained  to  its  said  business;  and  while  its  said 
agents,  servants  and  employees  were  so  upon  said  wires,  cables 
and  poles  and  engaged  in  work  thereon  for  said  company,  they 
were  lawfully  upon  said  wires,  cables  and  poles  and  were  law- 
fully so  engaged  in  work  thereon. 

And  the  plaintiff  says  that  his  intestate,  the  said 

,  heretofore,  to  wit,  on  the day  of , 

19. .,  at  the  special  instance  and  request  of  the  said 

company  of  Virginia  was  engaged  in  work- 
ing for  hire  for  said  company  on  its  said  poles,  cables  and 

wires  strung  as  aforesaid  along,  over  and  upon  said 

avenue  and  in  the  prosecution  of  his  said  work  for  said  com- 
pany, it  became  necessary  for  plaintiff's  intestate,  at  the  spe- 
cial instance  and  request  of  to  go  on  the  said 

poles,  cables  and  wires  of  said  company  and  work  upon  and 
handle  its  said  wires  and  cables. 

And  the  plaintiff  says  that  heretofore,  to  wit,  on  and  before 

the day  of ,  19 .  . ,  the  said  defendant 

erected,  placed,  maintained,  operated  and  controlled  a  certain 


894  ANNOTATED   FORMS   OF   I'LEADING   AND    PRACTICE 

system  of  wires  in  said  city  on,  over  and  along  said  street 

called  and  known  as avenue,  which  wires  were 

hung  and  suspended  over,  along  and  upon  certain  poles  of  the 
defendant,  and  which  said  poles  and  wires  of  the  defendant 
were  so  erected,  placed,  maintained,  operated  and  controlled 

by  said  defendant,  on,  over  and  along  said  for 

the  purpose  of  doing  a  general  electric  light  and  power  and 

street  railway  business  in  the  city  of   for  hire, 

profit  and  reward  to  said  defendant  in  that  behalf;  and  said 
wires  of  the  defendant  were  practically  parallel  with  and  over 

the  said  wires  and  cables  of  said   

company  of  Virginia  and  the  said  poles  of  the  said  defendant 
and  of  the  said company  of  Virginia  sup- 
porting their  respective  wires  and  cables  were  practically  in  a 
line  with  each  other;  and  said  wires  of  the  defendant  were 

near  said  wires,  cables  and  poles  of  said  

company  of  Virginia  and  were  from  time  to  time  heavily 
charged  with  a  dangerous  current  of  electricity  which  was 
being  transmitted  by  the  defendant  over  and  along  them,  and 
the  said  defendant  knew  or  by  the  exercise  of  the  care  re- 
quired of  it  by  law  in  such  cases  could  have  known  that  the 

employees  of  the  said    company 

of  Virginia  while  lawfully  engaged  in  work  on  the  said  poles, 

cables  and  wires  of  said   company 

of  Virginia  had  necessarily  to  come  in  close  proximity  to,  and 
were  liable  to  come  in  contact  with  said  wires  of  the  defendant 
while  so  charged  with  a  dangerous  current  of  electricity  and 
by  reason  of  such  contact  were  liable  to  be  killed  or  suffer 
bodily  hurt.* 

And  thereupon  it  became  and  was  the  duty  of  said  defendant 
to  use  such  care  as  was  required  by  law  to  so  erect,  place, 
locate,  operate,  control,  protect,  guard,  maintain  and  properly 
insulate  its  said  wires  and  to  so  warn  plaintiff's  intestate  as 
to  prevent  injury  to  him  from  coming  in  contact  with  its  said 
wires  when  charged  with  a  dangerous  current  of  electricity 
while  he  was  lawfully  on  or  working  for  said  company  on  its 
said  wires,  cables  and  poles,  erected,  located  and  maintained 
as  aforesaid  and  while  he  was  lawfully  in  proximity  to  said 
wires  of  the  defendant. 

Yet  the  said  defendant,  not  regarding  its  duty  in  that  behalf, 
carelessly,  negligently  and  unlawfully  failed  to  protect  and 
properly  insulate  one  of  its  said  wires  on,  over  and  along  said 

avenue,  which  wire  was,  as  above  set  out,  in  close 

proximity  to  said  wires,  cables  and  poles  of  the 

company  of  Virginia,  and  was  covered  with  insulating  material 
and  was  to  all  outward  appearance  properly  and  sufficiently 
insulated  and  seemingly  harmless  to  anyone  coming  in  contact 
therewith  while  charged  with  a  dangerous  current  of  elec- 
tricity, but  the  insulation  of  which,  though  intact,  or  appar- 
ently intact  and  with  no  visible  break  or  abrasion  therein  was 


PERSONAL  INJURIES  895 

in  reality  totally  insufficient  and  inadequate  to  prevent  injury 
to  any  one  coming  in  contact  with  said  wire  while  so  charged 
with  a  dangerous  current  of  electricity  if  he  should  happen  at 
the  same  time  to  be  "grounded,"  and  there  was  nothing  in 
the  appearance  of  said  wire  or  the  insulation  thereof  from  a 
visual  examination  thereof  to  indicate  the  danger  in  so  com- 
ing in  contact  therewith;  and  carelessly,  negligently  and  un- 
lawfully erected,  placed,  located,  operated,  controlled  and 
maintained  said  wire  in  the  condition  above  set  out,  so  near 
to  said  wires,  cables  and  poles  of  the com- 
pany of  Virginia  as  that  anyone  working  on  the  latter  com- 
pany's said  wire,  cables  and  poles  had  naturally,  necessarily 
and  inevitably  to  come  in  close  proximity  to  and  was  liable 
at  any  time  to  come  in  contact  with  said  wire  of  the  defendant ; 
and  carelessly,  negligently  and  unlawfully  failed  to  guard  said 
wire  and  to  warn  plaintiff's  intestate  of  the  danger  in  coming 
in  contact  therewith  while  in  the  condition,  location  and  posi- 
tion above  set  out. 

2.  (Consider  first  count  to  star  as  here  repeated  the  same  as 
if  set  out  in  words  and  figures.)  , 

And  also  the  plaintiff'  says  that  at  and  before  the  time  of  the 
commission  of  the  grievances  hereinafter  set  forth  there  was 

in  effect  a  legal  and  valid  ordinance,  of  the  said  city  of 

,  a  municipal  corporation  in  the  state  of  Virginia,  pro- 
viding that  no  person,  firm  or  corporation  should  construct  or 
maintain  in  or  over  the  streets  of  the  said  city  any  defective 
or  any  improperly  installed  or  improperly  located  wires  or 
electric  apparatus. 

And  thereupon  it  became  and  was  the  duty  of  said  defendant 
not  to  construct  or  maintain  in  or  over  any  street  of  said  city 
any  defective  or  improperly  installed  or  improperly  located 
wires  or  electric  apparatus  in  such  manner  as  to  endanger  per- 
sons lawfully  coming  in  proximity  to  or  touching  its  said  wires. 

Yet,  the  defendant,  not  regarding  its  duty  in  this  behalf, 
carelessly,  negligently  and  unlawfully  constructed  and  main- 
tained in  and  over  one  of  the  streets  of  said  city  called 

avenue,  near  its  intersection  with 

avenue  one  of  its  said  electric  wares,  which  was  in  close  proxim- 

itv  to  said  wnres,  cables  and  poles  of  the  

company  of  Virginia,  and  which  was  defective  and  improperly 
installed,  in  that,  though  said  wire  was  covered  with  insulating 
material  and  to  all  outward  appearance  properly  and  suffi- 
ciently insulated  and  seemingly  harmless  to  anyone  coming  in 
contact  therewith  while  charged  with  a  dangerous  current  of 
electricity,  the  insulation  being  intact  and  with  no  visible 
abrasion  or  bare  place,  and  nothing  to  indicate  from  a  visual 
examination  thereof  the  latent  danger  therein,  yet  such  insula- 
tion was  in  reality  totally  insufficient  and  inadequate  to  pre- 
vent injury  to  anyone  coming  in  contact  with  said  wire  while 
so  heavily  charged  if  he  should  happen  at  the  same  time  to  be 


896  ANNOTATED   FORMS   OF    PLEADING   AND   PR.'.CTICE 

"grounded."  And  the  plaintiff  says  that  said  wire  was  also 
improperly  located  by  reason  of  the  fact  that  while  so  heavily 
charged  and  improperly  insulated,  it  was  placed  and  allowed 
to  remain  by  the  defendant  so  near  to  the  said  poles,  wires 
and  cables  of  the  company  of  Vir- 
ginia, that  anyone  working  for  the  last  mentioned  company  on 
its  poles,  wires  and  cables  was  liable  to  come  in  contact  with 
and  be  shocked  by  said  wire  of  the  defendant. 

3.  (Consider  first  count  to  star  as  here  repeated  the  same 
as  if  set  out  in  words  and  figures.) 

And  also  the  plaintiff  says  that  before  and  at  the  time  of  the 
commission  of  the  grievances  hereinafter  set  forth  there  was 
in  force  and  effect  a  legal  and  valid  ordinance  of  the  city  of 

which  required  that  the  city  electrician  of  said 

city  should  direct,  regulate  and  determine  the  placing,  opera- 
tion and  maintenance  of  electric  wires  in  the  city  of 

and  that  he  should  cause  all  such  wires  to  be  so  placed,  con- 
structed, guarded,  insulated  and  maintained  as  not  to  cause 
accidents  endangering  life  or  proi)erty.  And  the  defendant, 
its  agents  and  employees  were  aware  of  the  existence  and  bind- 
ing force  of  said  ordinance  and  had  been  directed  by  the  city 
electrician  of  said  city  to  so  place,  construct,  guard,  insulate 
and  maintain  its  said  wires  in  said  city  as  not  to  cause  acci- 
dents, endangering  life  or  property. 

And  thereupon  it  became  and  was  the  duty  of  said  defendant 
to  so  place,  construct,  guard,  insulate  and  maintain  its  said 
wires  in  said  city  as  not  to  cause  accidents  endangering  the  life 
of  any  person  lawfully  coming  in  proximity  to  or  touching  its 
said  wires. 

Yet,  the  defendant  not  regarding  its  duty  in  the  premises, 
negligently,  carelessly  and  unlawfully  placed,  constructed  and 
maintained  and  failed  to  insulate  and  guard  one  of  its  said 
wires  over  and  along  said avenue  near  its  inter- 
section with avenue,  the  same  being  then  and 

there  in  close  proximity  to  said  wires,  cables  and  poles  of  the 

company  of  Virginia,  and  being  then  and  there 

heavily  charged  with  a  dangerous  current  of  electricity,  to  wit, 

volts,  being  so  conducted  as  aforesaid  by  it 

along,  through  and  over  the  same,  in  such  a  way  as  tended, 
naturally  and  almost  inevitably,  to  cause  accidents  endanger- 
ing life,  in  this  that  said  wire  was  covered  with  insulating 
material  with  no  visible  abrasion  and  seemingly  intact,  and  to 
all  outward  appearance  sufficiently  protected  to  prevent  any- 
one from  being  shocked  by  the  current  of  electricity  passing 
through  it,  should  he  touch  said  wire,  but  in  reality  said  insula- 
tion was  totally  insufficient  to  prevent  accidents  endangering 
the  life  of  one  touching  the  same,  while  so  charged  with  a 
dangerous  current  of  electricity;  and  in  this  also  that  said 
wire  was  placed,  constructed  and  maintained  by  the  defend- 
ant in  the  condition  it  was  as  above  set  out,  so  near  to  said 


PERSONAL  INJURIES  897 

wires,  cables  and  poles  of  said  com- 
pany of  Virginia  as  that  anyone  working  on  the  latter  com- 
pany's said  wires,  cables  and  poles  had  naturally  to  come  in 
close  proximity  to  and  was  liable  at  any  time  to  come  in  con- 
tact with  defendant 's  said  wire ;  and  in  this  also  that  said  wire 
in  the  condition  it  was  as  above  set  out  and  placed,  constructed 
and  maintained  by  the  defendant  as  above  set  out,  was  not 
properly  guarded  by  the  defendant,  as  required  by  said 
ordinance. 

And  the  plaintiff  says  that  his  intestate,  the  said 

heretofore,  to  wit,  on  the  day  of ,  19 . . , 

at  the  city  aforesaid,  while  lawfully  on  one  of  the  poles  of  his 

employer,  the  said  ,  on  said  

avenue  near  its  intersection  with    avenue  and 

engaged  in  working  for  his  said  employer,  standing  on  one 
of  its  said  cables  which  was  attached  to  said  pole  and  working 
on  another  of  its  said  cables  which  he  was  fastening  to  the 
cross-arm  of  the  said  pole,  relying,  as  he  had  the  right  to  do, 
on  the  proper  observance  by  the  defendant  of  said  ordinance, 
and  presuming  as  he  had  a  right  to  do,  that  the  said  insulation 
of  the  defendant's  said  wire,  which  was  immediately  above 
him  and  so  near  him  that  it  would  easily  come  in  contact  with 
him  in  the  proper  prosecution  of  his  said  work,  would  be  a  pro- 
tection against  his  being  shocked  by  the  current  of  electricity 
passing  through  it,  should  he  come  in  contact  with  it,  and  he 
being  at  the  same  time  inexperienced  in  electrical  work  in- 
volving such  latent  dangers  as  are  hereinbefore  recounted,  and 
without  any  knowledge  of  such  latent  dangers,  and  relying  as 
he  had  a  right  to  do  on  the  assumption  that  the  defendant, 
having  so  insulated  its  said  wires,  would  protect  and  had 
protected  the  same  from  all  such  hidden  and  latent  dangers, 
and  without  any  previous  warning  by  the  defendant  of  the 
danger  in  so  coming  in  contact  with  the  same  should  he  at  the 
same  time  be  "grounded,"  without  any  negligence  on  his  part, 
and  with  no  knowledge  of  the  danger  in  touching  said  wire, 
came  in  contact  with  said  wire  of  the  defendant,  which  was 
then  and  there  heavily  charged  with  a  dangerous  current  of 

electricity,  to  wit,  volts,  being  so  conducted  as 

aforesaid  by  the  defendant  by,  through  and  over  the  same,  and 
which  was  not  properly  insulated,  whereby  and  by  reason  of 
the  negligent  and  unlawful  conduct  of  the  defendant  as  above 
set  out  he  was  shocked,  stunned,  burned  and  otherwise  injured 
by  said  current  of  electricty  and  caused  to  fall  from  said 
pole  to  the  ground,  from  which  injuries  and  fall  he  suffered 
great  and  intense  mental  and  physical  anguish  and  pain,  to  wit, 
for  about hours,  and  then  and  there  died.  Where- 
fore, etc. 


898  ANNOTATED  FORMS  OP   PLEADING   AND   PRACTICE 

1535  Transformer,  defective,  consumer  injured,  Narr.  (D.  C.) 

For  that  heretofore,  to  wit,  on defendant  was, 

and  for  a  long  time  prior  thereto  had  been  engaged  in  operat- 
ing a  plant  in  the  District  of  Columbia  in  which  electric  cur- 
rent was  generated,  and  was  the  owner  of  certain  wires  and 
conduits  used  for  the  purpose  of  conducting  the  said  electric 
current  so  generated  from  said  plant  to  divers  buildings,  in 
the  District  of  Columbia,  and  was  by  means  of  said  plant,  elec- 
tric current,  conduits  and  wires  engaged  in  furnishing  liglit 
and  power  to,  among  many  other  places,  the  premises  num- 
ber   avenue  northeast  in  said  District,  and  that 

the  said  defendant  used  a  certain  machine  or  instrument 
known  as  a  transformer,  for  the  purpose  of  reducing  the  cur- 
rent that  was  being  carried  over  one  of  its  wires  running  along 

its  conduit  on street  northeast  near 

street  in  said  District,  from  a  voltage  of,  to  wit, 

to ,  and  that  said  electric  current  of 

volts  was  to  be  carried  into  the  said  premises  number 

avenue  northeast  for  the  purpose  of  lighting  said  premises; 
but  the  plaintiff  says  that  regardless  of  its  duty  in  the  prem- 
ises, the  defendant  negligently  and  carelessly  caused  and 
allowed  the  installation  of  a  defective  transformer  at  said  place 

on street  northeast  near street,  and 

that  on,  to  wit,  the  day  and  year  aforesaid  said  transformer 
by  reason  of  this  defective  condition,  failed  to  reduce  the  said 
high  voltage,  and  instead  of  the  proper  electric   current  of 

volts  being  carried  into  the  said  premises 

avenue  northeast,  the  full  power  of  electric  current  running 

along  the  said  wire  in  said  conduit  on  said street 

northeast  near street,  to  wit,  a  voltage  of 

was  carried  into  the  said  premises  over  a  cer- 
tain wire  or  wires  installed  by  said  defendant ;  and  that  on 
account  of  said  negligence  a  dangerous  condition  was  caused 
to  exist  in  said  premises  without  the  knowledge  of  the  plain- 
tiff's intestate.    That  the  plaintiff's  intestate on 

the  said day  of being  lawfully  on 

the  premises,  did,  while  using  all  due  care  and  without  fault 
or  negligence  on  his  part,  then  and  there  touch  and  come  in 
contact  with  a  certain  wire  so  negligently  charged  by  said 
defendant  with  a  high  voltage,  or  electric  current,  and  thereby 
received  an  electric  shock  which  caused  the  death  of  plaintiff's 

intestate hour  after  said  contact  and  shock ;  and 

the  plaintiff  avers  that  the  said  intestate  left  surviving  him  his 

widow  . and as  his  only  next  of 

kin,  his  infant  son of  the  age  of 

years,  both  of  whom  were  dependent  upon  plaintiff's  intestate 
for  support,  and  both  of  whom  have  suft'ered  damages  by  rea- 
son of  the  plaintiff's  said  intestate,  injury  and  death,  as  afore- 
said.   That  by  reason  of  the  statute  in  such  a  case  enacted  the 


PERSONAL    INJURIES  899 

plaintiff  is  entitled  to  recover  damages  from  the  defendant 
for  the  benefit  of  the  next  of  kin  and  the  window  of  said  intes- 
tate.   Wherefore,  etc. 

1536  Transformer  defective,  inspector  injured,  Narr.  (111.) 

For  that  whereas,  on,  to  wit, day  of 

,  19.  .,  the  defendants  did  possess,  maintain  and  operate 

in  the  city  of ,"and  said  county,  a  system  of  elec- 
tric lights  and  electric  street  railways  for  which  the  electricity 
was  generated  at  a  single  powerhouse  and  conducted  by  means 
of  wires  of  various  electrical  currents  of  electricity,  some  of 
the  currents,  being  of  greater  strength,  force  and  intensity 
than  others,  were  conveyed  from  the  powerhouse  to  various 
points  in  the  said  city,  and  it  did  operate,  manage  and  con- 
trol a  certain  electric  light,  street  railway  and  power  plant, 
with  its  machinery,  dynamos,  wires  and  appliances  in  said 
city.  That  the  said  defendants,  at  the  time  aforesaid,  had  a 
large  number  of  other  wires  and  appliances  which  carried  a 
very  high  current  of  electricity  that  was  fatal  to  human  life, 
in  close  proximity  to  a  certain  hereinafter  mentioned  wire ; 
and  knowing  the  danger  in  case  the  said  higher  and  deadly 
current  of  electricity  came  upon  a  lower  or  secondary  wire, 
the  said  defendants  did  adopt,  install  and  maintain  an  appli- 
ance or  device,  the  use  of  which  is  usual  and  customary  in  said 
electrical  business,  known  as  a  fuse  block  or  plug  connected 
with  said  secondary  wire;  that  said  fuse  block  or  plug  was  a 
device  made  out  of  fuse  wire,  the  object  and  purpose  of  which 
was  to  prevent  a  high  and  deadly  current  of  electricity  in  case 
it  came  upon  said  secondary  wire  from  reaching  the  place 

where  it  was  the  duty  of  to  take  hold  of  the 

same ;  that  when  properly,  customarily  and  safely  attached, 
installed,  maintained  and  adjusted,  the  said  fuse  block  or  plug 
will  prevent  a  high  and  deadly  current  of  electricity  from 
going  over  a  secondary  wire,  the  said  high  and  deadly  cur- 
rent in  such  cases  burning  out  the  said  fuse  block  or  plug 
wire,  thereby  disconnecting  the  secondary  wire  from  any  cur- 
rent whatever ;  of  all  of  which  said  defendants  had  knowledge. 
That  by  means  of  a  wire  known  as  a  primary  wire  a  very 
powerful  current  of  electricity  and  one  which  is  dangerous  to 
human  life,  was  conveyed  by  the  said  defendants  from  their 
power  house  to  an  instrument  known  as  a  transformer,  the 
object  and  purpose  of  said  transformer  being  to  modify  and 
lessen  the  character  and  strength  of  the  said  current  of  elec- 
tricity and  make  it  of  a  character  that  would  not  be  dangerous 
to  human  life,  and  to  transmit  the  said  modified  and  lessened 
current  of  electricity  through  a  wire  known  as  a  secondary 
wire  to  the  hereinafter  mentioned  incandescent  light.  That  a 
certain  wire  which  terminated  in  a  bulb  containing  an  incan- 
descent light  was  connected  with  and  was  a  part  of  a  certain 


900  ANNOTATED   FORMS  OF   PLEADING   AND   PILVCTICE 

circuit  known  as  a  secondary  circuit,  which  said  secondary 
circuit  supplied  a  large  number  of  incandescent  lights  with 
electricity  besides  the  one  first  mentioned;  that  the  current  of 
electricity  which  usually  and  customarily  passed  through  the 
said  secondary  circuit  was  not  strong  enough  to  be  dangerous 
to  a  person  taking  hold  with  his  hand  of  a  wire  at  any  place 
in  said  secondary  circuit. 

And  that  at  the  time  aforesaid  the  said was  in 

the  employ  of  defendants  as  a  ear  inspector,  cleaner  and 
repairer  in  the  night  time  and  was  there  at  the  time  aforesaid 
actively  engaged  at  work  in  the  car  barn  of  the  said  defend- 
ants; that  at  the  time  and  place  aforesaid  it  was  customary 

and  usual  for  the  said   in  the  discharge  of  his 

duties  as  car  inspector,  cleaner  and  repairer  as  aforesaid  to 
take  hold  with  his  hands  of  said  wire  which  terminated  in  said 
bulb,  containing  an  incandescent  electric  light,  for  the  purpose 
of  carrying  the  electric  light  bulb  around  in  and  about  making 
the  inspection  as  aforesaid;  all  of  wiiich  was  known  to  the  said 
defendants,  or  could  have  been  known  to  them  by  the  exercise 
of  ordinary  care. 

And  it  then  and  there  became  and  was  the  duty  of  the  said 
defendants  to  keep  the  said  wires  safely,  securely  and  com- 
pletely insulated  so  that  said ,  while  in  the  exer- 
cise of  reasonable  care,  should  not  be  injured  by  contact  there- 
with;  but  that  the  said  defendants,  notwithstanding  such 
knowledge,  and  disregarding  its  duty  in  the  premises,  care- 
lessly and  negligently  maintained  the  said  wires  and  caYelessly 
and  negligently  protected  the  same  by  defective  insulation, 
and  carelessly  and  negligently  failed  to  protect  and  cover  said 
wires  with  safe  or  sufficient  insulating  material,  and  carelessly 
and  negligently  permitted  the  covering  used  thereon  to  become 
worn,  defective  and  wholly  insufficient  to  render  it  safe  for 
persons  coming  in  contact  therewith. 

And  it  also  then  and  there  became  and  was  the  duty  of  the 
said  defendants  to  keep  the  said  transformer  in  such  repair  and 

safe  and  secure  condition  as  that  the  said while 

in  the  exercise  of  due  care  should  not  be  injured  by  contact 
with  the  said  wires  while  in  the  performance  of  his  said  duty; 
but  that  the  said  defendants,  notwithstanding  its  knowledge 
and  disregarding  its  duty  in  the  premises,  carelessly  and  negli- 
gently maintained  the  said  transformer  in  a  dangerous,  defect- 
ive and  unsafe  condition,  whereby  it  did  not  properly  modify 
and  lessen  the  said  powerful  current  of  electricity. 

And  it  also  became  and  was  the  duty  of  the  said  defendants 
to  so  maintain  and  operate  their  system  of  dynamos,  wires 

and  electrical  transmission  that  the  said   .•••_••_ > 

while  in  the  exercise  of  due  care  should  not  be  injured  by  con- 
tact with  the  said  wires  while  in  the  performance  of  his  said 
duty;  but  that  the  defendants,  notwithstanding  their  knowl- 
edge, and  disregarding  their  duty  in  the  premises,  while  the 


PERSONAL  INJURIES  901 

said  held  said  wire  terminating  in  an  electric 

light  as  aforesaid  in  his  hands  while  in  the  course  of  his  duty 
as  aforesaid,  carelessly  and  negligently  maintained  their  sys- 
tem of  wires  in  a  dangerous,  defective  and  unsafe  condition 
and  carelessly  and  negligently  maintained  their  said  wires,  and 
carelessly  and  negligently  protected  the  same  by  defective 
insulation,  and  carelessly  and  negligently  failed  to  protect 
and  cover  said  wires  with  sufficient  insulating  material  and 
carelessly  and  negligently  permitted  the  covering  used  thereon 
to  become  worn,  defective  and  wholly  insufficient  to  render 
them  safe,  whereby  another  of  defendants  electrical  wires  be- 
came crossed  with  the  said  wire  ending  with  the  said  electric 
light  and  thereby  caused  a  different  kind  of  a  current  and  a 
stronger  and  more  dangerous  current  of  electricity  to  pass 
through  the  said  wire  ending  in  the  electrical  light. 

And  that,  also,  certain  wires  of  said  defendants  which  passed 

over  said  car  barn  in  which  said was  working  at 

the  said  time,  were  negligently,  carelessly  and  defectively 
built,  constructed  and  maintained  and  were  at  the  said  time 
in  an  unsafe  and  dangerous  condition,  by  reason  whereof  a 
primary  wire  of  defendants,  carrying  a  high  voltage  current 
was  in  such  near  proximity  to  a  secondary  wire  of  defendants 
which  supplied  the  said  incandescent  electric  light  and  wire 
of  defendants  aforesaid  described,  carrying  a  low  voltage  cur- 
rent, so  that  the  electrical  current  that  passed  through  the  said 
secondary  wire  became  and  was  of  a  higher  voltage  and  by 
reason  thereof  said  electrical  current  passing  through  the  said 
secondary  wire  was  dangerous  and  fatal  to  the  life  of  the 
person  taking  hold  of  said  secondary  wire  with  his  hands  at  a 
point  about  one  foot  from  the  said  incandescent  light;  which 
said  condition  was  known  to  the  said  defendants  or  could 
have  been  known  by  the  exercise  of  ordinary  care. 

And  it  also  became  and  was  the  duty  of  the  said  defendants 
in  putting  in  place  the  said  wires  and  in  connecting  them 
with  the  said  transformer  to  do  and  perform  the  same  with 
usual  and  customary  precautions  against  the  coming  together 
of  said  primary  and  secondary  wires ;  but  that  said  defendants 
notwithstanding  their  knowledge  and  disregarding  their  duty 
in  the  premises  carelessly  neglected  to  take  such  precautions 
against  the  coming  together  of  said  primary  and  secondary 
W'ires  as  are  usual  and  customary,  and  carelessly  and  negli- 
gently put  up  and  placed  the  said  wires  and  connected  them 
with  the  said  transformer  and  maintained  them  so  that  the 
said  primary  and  secondary  wires  were  crossed  and  within 
a  short  distance  of  each  other  and  thereby  became  and  were 
unsafe  and  dangerous  to  the  said 

And  it  also  became  and  was  the  duty  of  the  said  defendants 
to  adopt,  install,  adjust  and  maintain  a  fuse  block  or  plug 
of  such  character  and  in  such  good  and  safe  condition  as 
would  prevent  a  high  and  deadly  current  of  electricity  in 


902  ANNOTATED   FORMS   OF    PLEADING   AND    PRACTICE 

case  it  came  upon  said  first  mentioned  wiin;  from  reaching  the 

place  where  as  aforesaid  it  was  the  duty  of  the  said 

to  take  hold  of  the  same ;  yet,  the  said  defendants  well  knowing 
the  premises  and  carelessly  neglecting  to  provide  the  said 
first  mentioned  wire  with  the  usual  safe  fuse  plug  or  block, 
did,  to  wit,  on  the  day  aforesaid,  carelessly  and  negligently 
install  and  adjust  and  did  carelessly  and  negligently  maintaiii 
the  said  fuse  plug  or  block  in  such  unsafe  and  dangerous  con- 
dition as  to  permit  a  high  and  deadly  current  of  electricity  to 
pass  over  the  said  first  mentioned  wire. 

And  it  also  became  and  was  the  duty  of  the  said  defendants 

to  inform  the  said of  said  high  and  deadly 

current  of  electricity  passing  through  said  secondary  circuit ; 
yet,  the  said  defendants,  not  regarding  their  duty  in  that 
behalf,  while  they  were  so  managing,  operating  and  control- 
ling said  machinery,  dynamos,  wires  and  appliances  carelesslv 

and  negligently  neglected  to  inform  the  saitl \ 

of  said  high  and  deadly  current  of  electricity  passing  through 
said  secondary  circuit. 

And  that  by  means  whereof,  at  the  time  and  place  aforesaid, 
while  in  the  discharge  of  his  duties  as  aforesaid,  and  in  the 

exercise  of  ordinary  care,  said   took  hold  with 

his  hand  of  said  first  mentioned  wire  about  one  foot  from  the 
said  incandescent  electric  light  on  the  end  of  said  Avire,  which 
was  a  part  of  said  secondary  circuit  as  aforesaid  and  received 
a  shock  from  a  high  and  deadly  current  of  electricity  which 
was  passing  through  said  wire  at  the  same  time,  and  thereby 
received  said  electrical  current  through  his  body  and  was  then 
and  there  killed.     (Add  last  two  paragraphs  of  Section  1495) 

1537  Wire  conductors  uninsulated,  Narr.  (111.) 

For  that  whereas  on  and  before  the day  of 

,   19..,  and  during  the  lifetime  of  said  decedent,   the 

defendant  was  possessed  of,  maintaining,  using  and  controlling 
a  system  of  wire  conductors  within  the  corporate  limits  of  said 

village  of ,  extending  over,  above  and  along 

certain  of  the  public  streets  of  said  village  and  supported  by 
upright  poles  and  which  said  system  of  wire  conductors  was 
so  possessed,  maintained,  used  and  controlled  by  the  defendant 
for  the  purpose  of  conducting  and  transmitting  an  electric  cur- 
rent to  certain  electric  lamps  of  the  defendant  located  and  sus- 
pended above  and  along  certain  of  the  public  streets  of  said 
village  and  supplying  for  hire  electric  light  to  such  of  the 
citizens  of  said  village  as  were  using  electric  lamps;  and 
pursuant  to  such  purpose  the  defendant  then  had  one  of  its 
wire  conductors  suspended  overhead  at  or  near  the  intersec- 

^^^  of and streets  in  said  village, 

heavily  charged  with  electricity,  which  said  wire  conductor 
was  supported  by  a  wooden  arm,  to  wit,  eight  inches  in  length 


PERSONAL   INJURIES  903 

attached  to  and  extending  from  a  certain  upright  pole  there  at 

a  height  of,  to  wit, feet  from  the  surface  of  the  street 

there,  and  which  said  upright  pole  was  stayed  and  braced  by 
a  certain  uninsulated  wire  fastened  to  said  upright  pole  at  a 
point  near  to  and  immediately  beneath  said  wooden  arm  and 
wire  conductor  there  and  extending  therefrom  over  and  across 
a  certain  sidewalk  there  Avithin  easy  reach  of  persons  passing 
upon  and  along  said  sidewalk  and  street  there  to  and  encircling 
and  attaching  to  a  certain  post  there,  said  post  in  said  street 

then  at  a  point,  to  wit, feet  from  the  surface  of  the 

ground  there  within  easy  reach  of  persons  passing  thereby 

and,  to  wit, feet  from  the  outer  edge  of  the  sidewalk 

there.  , 

And  it  then  and  there  became  and  was  the  duty  of  the  de- 
fendant to  have  and  keep  said  wire  conductor  properly  and 
completely  insulated  and  properly  adjusted  and  safely  sup- 
ported on  said  wooden  arm  and  said  wooden  arm  firmly  and 
securely  attached  to  said  upright  pole  so  that  said  wire  con- 
ductor would  not  fall  down  and  upon  said  uninsulated  wire 
and  thereby  transmit  and  conduct  a  deadly  current  of  electric- 
ity to  and  through  said  uninsulated  wire,  thus  endangering 
the  lives  of  persons  passing  upon  and  along  the  sidewalk. 

Yet,  the  defendant  not  regarding  its  duty  in  this  behalf 
knowingly,  carelessly,  negligently  and  wantonly  permitted  said 
wire  conductor  to  be  and  to  become  and  remain  illy,  imper- 
fectly and  defectively  insulated  and  said  wooden  arm  support- 
ing said  wire  conductor  as  aforesaid  to  become  and  remain 
loose  and  unstable  upon  said  upright  post,  by  reason  whereof 
said  wire  conductor  fell  to  and  upon  said  uninsulated  wire 
then  and  there  discharging  and  conducting  into  and  through 
said  uninsulated  wire  a  deadly  current  of  electricity  and  which 
said  wire  conductor  imperfectly  and  defectively  insulated  as 
aforesaid  the  plaintiff  avers  the  defendant  carelessly,  negli- 
gently and  wantonly  permitted  to  rest  upon  and  be  and  remain 
in  contact  with  said  uninsulated  wire  there  for  a  long  space  of 
time  prior  to  the  time  of  the  death  of  said  decedent,  to  wit, 
days  prior  thereto ;  and  while  the  decedent  was 
then*  and  there  walking  upon  and  along  the  said  sidewalk 
and  said  street  with  all  due  care,  caution  and  diligence  for  his 
personal  safety  he,  said  decedent,  came  in  contact  with  said 
uninsulated  wire  there  charged  as  aforesaid  with  a  deadly 
current  of  electricity  which  passed  to  and  through  the  body 
of  the  decedent  and  thereby  said  decedent  was  then  and  there 
instantly  killed.    (Add  last  two  paragraphs  of  Section  1495) 


1538  Elevator,  apartment  building,  action 

A  landlord  who  in  renting  different  parts  of  his  building  to 
various  tenants  reserves  the  elevators,  halls,  stairways  or  other 


904  ANNOTATED    FORMS   OF   PLEADING   AND    PRACTICE 

approaches  for  their  common  use,  is  under  an  implied  duty  to 
keep  these  places  in  a  reasonably  safe  condition,  and  is  liable 
to  persons  who  are  lawfully  in  the  building  and  who  are  injured 
as  a  result  of  a  failure  to  perform  that  duty.^^'^ 

1539  Elevator,  appliances  and  construction  defective,  Narr. 
(Ill) 

For  that  whereas  the  defendant  in  the  lifetime  of  the  said 
T  was,  and  still  is  a  corporation  organized  and  existing  under 

and  by  virtue  of  the  laws  of  the  state  of  ,  and 

then  and  there,  to  wit,  at  the  city  of ,  in  the  said 

county  of and  state  of  Illinois,  on,  to  wit,  the 

day  of ,  19.  ..  in  the  city,  county  and  state  afore- 
said, did  maintain,  conduct,  operate,  possess  and  carry  on 
its  certain  business  of  tlie  retail  dry  gooils  store  in  a  certain 
building,  structure  or  premises  commonly  called  and  known  by 

the  name  of  C,  situated,  to  wit,  at  the corner  of 

and streets,  in  the  city,  county  and 

state  aforesaid;  that  prior  to,  and,  on,  to  wit,  the  ....  day  of 

,  19.  .,  the  said  defendant,  D,  in  connection  with  their 

said  retail  dry  goods  business  at  the  place  aforesaid  did  main- 
tain, possess  and  operate  a  certain  ascending  and  descending 
mechanical  contrivance  or  car  commonly  ealleil  and  known 
by  the  name  of,  to  wit,  an  elevator,  and  elevator  shaft  and 
machinery  for  the  purpose,  infrr  alia,  of  carrying  and  conveying 
from  floor  to  floor  of  said  building  or  structure  passengers  and 
patrons  of  said  defendant  company;  that   prior  to,   and   on, 

to  wit,  the  ....  day  of ,  19.  .,  the  said  T  was  employed 

as  an  elevator  operator  or  conductor  by  the  said  defendant  in 
its  said  building  situated  in  the  city  and  county  aforesaid,  and 
that  while  the  said  T  was  engaged  in  the  performance  of  his 
said  duties  as  elevator  conductor,  and  while  the  said  T  was 
in  the  exercise  of  all  due  care  and  diligence  for  his  own  safety, 
and  in  the  usual  and  ordinary  course  of  his  business  and 
occupation  as  such  employee  of  said  defendant,  and  while  the 
said  T  in  the  usual  and  ordinary  course  of  his  employment 

was  operating  the  said  car  at  the  floor  of  said 

building  or  structure,  nevertheless  the  said  defendant,  well 
knowing  the  premises  and  regardless  of  its  duty  therein, 
negligently,  carelessly  and  improperly  constructed  said  ele- 
vator with  defective  appliances,  stops,  brakes,  rests,  safeties, 
dogs  or  grabs  to  catch  the  elevator  going  up  or  down,  without 
suf^cient  cables  and  cable  attachments  and  connections,  with- 
out a  sufficient  automatic  safety  governor  to  control  the  mov- 
ing power;  negligently,  carelessly  and  improperly  failed,  neg- 

"»  Mueller  v.  Phelps,  252  HI.  630, 
633  (1912). 


PERSONAL  INJURIES  905 

lected  and  omitted  to  keep  and  maintain  said  elevator,  its  shaft 
and  machinery  in  a  safe  and  secure  condition;  and  carelessly, 
negligently  and  improperly  allowed,  suffered  and  permitted 
said  elevator  shaft  and  machinery  to  be  and  become  out  of 
repair  and  in  an  unsafe  and  dangerous  condition  in  this,  that 
the  connection  of  said  elevator  with  its  controlling  cable  was 
defective  and  improper  and  worn  out  and  the  appliances  for 
stopping  and  controlling  its  operation  were  out  of  order  and 
defective ;  and  the  defendant  by  its  servants  then  and  there 
negligently  and  carelessly  failed  and  neglected  to  keep  said 
emergency  devices  designed  to  be  used  to  stop  the  same  when 
accidents  happened  to  said  elevator  shaft  or  machinery  in  a 
safe  and  secure  condition ;  and  it  also  became  and  was  the  duty 
of  said  defendant  to  use  reasonable  care  and  diligence  to  keep 
and  maintain  the  said  elevator  and  elevator  shaft,  its  appurte- 
nances and  surroundings  and  machinery  in  a  reasonably  safe 
and  secure  condition  and  state  of  repair  in  order  that  no 
injuries  should  accrue  to  the  said  T  by  reason  of  any  default 
of  the  defendant  in  the  premises. 

Yet,  the  defendant,  wholly  disregarding  its  duty  in  that 
behalf  at  the  time  aforesaid  and  at  the  place  aforesaid,  and 
whilst  the  said  T  was  rightfully,  and  with  reasonable  care  for 

his  own  safety,  operating  the  said  elevator  at  the 

floor  of  said  building,  carelessly,  negligently,  wrongfully  and 
improperly  permitted  and  allowed  the  said  elevator  and  its 
machinery,  its  stops,  brakes,  rests,  safeties,  dogs  or  grabs  to 
catch  the  elevator  going  up  or  down  to  be  and  become  out  of 
repair  and  in  an  unsafe  and  dangerous  condition. 

2.  That  also,  while  the  said  T  was  engaged  in  the  per- 
formance of  his  said  duties  as  elevator  conductor,  and  while 
the  said  T  was  in  the  exercise  of  all  due  care  and  diligence 
for  his  own  safety,  and  in  the  usual  and  ordinary  course  of  his 
business  and  occupation  as  such  employee  of  the  said  defend- 
ant, and  while  the  said  T  in  the  usual  course  of  his  employment 

was  operating  the  said  elevator  or  car  at,  to  wit,  the 

floor  of  said  building  or  structure,  nevertheless  the  said  defend- 
ant, well  knowing  the  premises  and  regardless  of  its  duty  there- 
in, negligently,  carelessly  and  improperly  constructed  said 
elevator  in  this,  that  the  cage  or  car  of  said  elevator  was  con- 
structed with  a  large  heavy  beam  at  the  top  of  said  cage  or  car, 
to  which  said  beam  were  attached,  to  wit,  certain  cables  and 
other  devices  for  the  operation  of  said  car;  that  the  braces, 
bolts  and  fastenings  by  which  the  said  cage  or  car  was  attached 
to  the  said  beam,  were  frail  and  insufficient,  or  that  the  said 
cage  or  car  was  of  itself  of  such  light  construction  as  to  be 
insufficient  to  support  the  weight  of  said  beam,  or  to  safely 
attach  said  beam  to  the  said  cage  or  car;  that  the  said  elevator 
was  constructed  with  defective  appliances,  stops,  brakes,  rests, 
safeties,  dogs  or  grabs,  to  catch  or  hold  the  said  elevator  going 
up  and  down,  was  without  sufficient  cables  or  cable  attachments 


906  ANNOTATED    FORMS   OF    PLEADING   AND    PRACTICE 

or  connections,  was  without  sufticient  automatic  safety  gov- 
ernor or  other  safety  devices  for  the  reasonably  safe  opera- 
tion of  said  car;  that  the  defendant  ncgliguntly,  cari-lt'ssly  and 
impropm-ly  failed,  neglected  and  omitlt'd  to  keep  and  maintain 
said  elevator,  its  shaft  and  machinery  in  a  safe  and  secure  con- 
dition, and  carelessly,  negligently  and  improperly  suffered  and 
permitted  said  elevator  car,  cage,  shaft  and  machinery  to  be 
and  remain  in  an  unsafe  and  dangerous  condition;  that  the 
defendant  permitted  said  elevator  to  be  operated  in  its  unsafe 
and  improper  construction,  and  permitted  the  appliances  for 
stopping  and  controlling  the  operation  of  said  elevator  to  be  out 
of  order  and  defective,  and  permitted  the  said  safety  appli- 
ances or  devices  for  stopping  the  said  car  in  cases  of  emergency 
to  remain  in  an  insutiicient,  unsafe  and  unsecure  condition. 

3.  And  that  it  also  became  and  was  the  duty  of  the  said 
defendant  to  furnish  and  provide  an  inspector  for  the  purpose 
of  inspecting  the  condition  of  said  elevator  shaft  and  machin- 
ery; that  it  became  and  was  the  duty  of  said  defendant  to 
properly  insj)ect  said  elevator  and  machinery;  i)ut  that  the 
defendant,  not  regarding  its  duty  in  tiiis  behalf,  carelessly, 
negligently  and  improi)erIy  failed  to  properly  and  sulWciently 
inspect  the  same. 

But  the  said  defendant  wholly  disregarded  its  duty  in  that 
behalf  and  permitted  the  said  elevator  or  car  operated  by  the 
said  T  to  become  and  remain  unsafe  and  insecure,  and  per- 
mitted said  elevator  or  car  to  be  operated  by  the  defendant 
wiiile  in  sucii  unsafe  and  insecure  condition. 

Hy  means  whereof,  whilst  the  said  T  was  aboard  said  car 
in  the  performance  of  his  duties  as  said  elevator  operator  or 
conductor  aforesaid,  and  in  the  exercise  of  due  care  and  cau- 
tion for  his  own  safety,  the  said  car  or  cage  whilst  descending 

from,  to  wit,  the floor  of  said  building,  fell,  broke 

and  parted  from  its  fastenings  and  machinery  and  was  precipi- 
tated M'ith  great  force  and  violence  to  and  upon  the  bottom  of 
said  elevator  shaft,  and  the  said  i)laintiff's  intestate  was  then 
and  there  thereby  crushed,  bruised,  maimed  and  wounded  as 
a  result,  whereof  the  said  T  died.  (Add  last  two  paragraphs 
of  Section  1495) 

1540  Elevator  shaft  unguarded,  Narr.  (D.  C.) 

For  that  whereas,  at  the  time  of  the  grievances  hereinafter 
mentioned,  the  defendant  was  in  possession  and  control  of  a 

certain  hotel  in  the  city  of ,  called  the , 

in  which  hotel  the  defendant  then  and  there  owned,  con- 
trolled and  operated  a  certain  elevator,  which  was  then  and 
there  used  as  a  passenger  elevator  for  the  purpose  of  carrying 
guests  and  inmates  of  the  said  hotel  from  floor  to  floor:  and 
that  it  then  and  there  became  and  was  the  duty  of  the  de- 
fendant to  have  said  elevator  provided  with  safe  and  proper 


PERSONAL  INJURIES  907 

appliances  and  appurtenances  and  to  have  and  keep,  the 
shaft  in  which  said  elevator  was  run  so  protected  and  enclosed 
as  to  render  the  use  of  said  elevator  safe  and  proper  for  guests 
and  inmates  of  the  said  hotel ;  but  that  the  defendant  then  and 
there  neglected  its  duty  in  that  regard,  in  this,  that  upon  one 
of  the  floors  of  said  hotel  a  certain  door  or  opening  into  said 
elevator  shaft  was  negligently  allowed  to  remain  open  and 
unprotected  so  that  the  plaintiff  while  a  guest  and  inmate  of 

said  hotel,  as  aforesaid,  on,  to  wit,  the  ....  day  of , 

and  while  he  was  in  the  exercise  of  due  care  on  his  part,  fell 
through  the  said  unprotected,  and  uninclosed  door  or  opening 

into  said elevator  shaft  and  was  projected  with 

great  force  and  violence  to  the  bottom  of  said  shaft ;  and  that 
the  plaintiff  became  and  was  thereby  severely  shocked  and 
bruised  and  injured  and  in  consequence  thereof  his  nervous 
system  was  seriously  affected  and  his  heart  became  weak  and 
irregular  and  he  lost  greatly  in  weight  and  his  general  health 
became  much  impaired ;  and  hy  reason  of  said  injuries  thus 
sustained  as  aforesaid  the  plaintiff  has  expended  large  sums 
of  money  in  endeavoring  to  be  cured  of  the  said  pains  and 
injuries  to  his  nervous  system,  and  has  continued  to  be 
shocked,  hurt  and  seriously  impaired,  all  to  the  damage,  etc. 

(Illinois) 

For  that  whereas,  on,  to  wit,  the ,  in  the  city  of 

,  county  and  state  aforesaid,  the  defendant  was 

possessed  of  certain  premises  known  as ,  in  said  city 

of ,  and  that  said  premises  consisted  of  a 

story  building;  that  in  the  rear  of  said  building  was  then  and 
there  a  certain  freight  elevator  used  by  the  said  defendant  in 
the  transportation  of  passengers  and  freight  from  the  base- 
ment of  said  building  and  up  to  the  top  floor  of  said  building; 

that  on  the  said  ....  day  of the  said  defendant  was 

then  and  there  possessed  of,  and  used  and  operated  the  said 
elevator  in  the  transportation  of  freight  and  passengers  from 
the  basement  of  said  building  to  and  from  the  various  floors  of 
said  building;  that  said  elevator  then  and  there  ran  through 
a  certain  shaft  in  said  building  and  that  from  the  ground 
floor  of  said  building  said  elevator  then  and  there  ran  a  dis- 
tance of,  to  wit, said  ground  floor  and  into  the 

basement  of  said  building ;  that  on  the  said  ....  day  of 

a  certain  portion  of  the  said  premises  of  the  said  defendant 

had  been  leased  by  the  said  defendant  to ,  and 

was  then  and  there  used  by  the  said in  the  carry- 
ing on  of  their  business  as  printers  and  publishers;  and  that 

the  said  defendant  as  lessor  of  said and  under 

an  agreement  with  said  ,  then  and  there  trans- 
ported upon  its  said  elevator  the  property  and  the  employees 
of  the  said 


908  ANNOTATED    FORMS   OF    PLEADING    AND    PKACTICK 

Plaintiff  further  avers  that  on  the  day  and  year  aforesaid  he 

was  an  infant  of,  to  wit, years  of  a^c  and  there 

a  servant  in  the  employ  of  said  and  then  and 

there  engaged  on  the  ground  floor  of  said  building  and  near  the 
elevator  shaft  of  said  building  in  the  performance  of  his  duties 

for  said ,  and  was  then  and  there  lawfully  upon 

said  premises;  that  the  premises  of  the  said  defendant  and 
the  building  of  said  defendant  near  the  elevator  shaft  where 
the  plaintiff  was  then  and  there  working  and  on  the  ground 
floor  of  said  building  were  on  the  day  and  year  aforesaid 
dimly  and  insufficiently  lighted;  that  the  elevator  shaft  tlirougli 
which  said  elevator  of  the  said  defendant  then  and  there  ran 
was  left  without  any  door  or  protection  of  any  kind,  but  was  at 
and  near  where  the  plaintiff'  was  then  and  there  situated  left 
entirely  unguarded  and  unprotected  so  that  any  person  work- 
ing or  being  near  said  elevator  shaft  when  tiie  said  elevator 
was  removed  from  said  ground  floor  was  liable  and  apt  to 
fall  into  said  elevator  shaft  and  into  said  basement  below ; 
that  it  was  then  and  there  practicable  and  it  was  then  and  there 
necessary  for  the  safety  of  the  jjlaintiff  and  other  persons  that 
might  be  on  the  ground  floor  of  said  buihiiiig  and  near  the 
said  elevator  shaft  that  said  elevator  shaft  should  be  guarded 
and  protected  with  doors  or  protections  so  as  to  guard  the 
plaintiff*  and  other  persons  from  unavoidably  stepping  or  fall- 
ing into  said  elevator  shaft  from  the  ground  floor  of  said 
building. 

Yet,  the  said  defendant  not  regarding  its  duty  in  that  behalf 
then  and  there  carelessly  and  negligently  failed  and  neglected 
to  protect  the  said  elevator  shaft  on  the  ground  floor  of  said 
building  with  a  gate  or  door  or  any  covering  of  any  kind, 
and  then  and  there  carelessly  and  negligently  left  said  elevator 
shaft  and  the  passage  leading  into  such  elevator  shaft 
unguarded  and  unprotected. 

And  the  plaintiff'  further  avers  that  on,  to  wit,  the  ....  day 

of   ,  while  said  plaintiff  was  then  and  there  in  the 

performance  of  his  duties  for near  the  elevator 

shaft  of  the  said  defendant  on  the  ground  floor  of  said  building 
and  while  then  and  there  and  at  all  times  in  the  exercise  of  all 
ordinary  care  for  his  own  safety,  by  reason  of  the  carelessness 
and  negligence  of  the  said  defendant  in  leaving  the  opening 
of  said  elevator  shaft  unprotected  and  unguarded,  said  plain- 
tiff unavoidably  stepped  into  the  unguarded  and  unprotected 
opening  of  said  elevator  shaft  and  then  and  there  fell  down 

said  shaft  a  great  distance,  to  wit,  the  distance  of 

feet,  and  was  then  and  thereby  greatly  cut,  bruised  and 
wounded  and  thereby  lost  the  sight  of  one  of  his  eyes  and 
thereby  plaintiff's  liver,  kidneys  and  nervous  system  and  brain 


PERSONAL  INJURIES  909 

were  permanently  injured  and  he  was  otherwise  permanently 
injured  and  crippled.    To  the  damage,  etc.^^*^ 


For  that  whereas  before  and,  on,  to  wit,  the day  of 

,  19..,  said  defendants  were  engaged  in  the  city  of 

,  county  and  state  aforesaid,  in  the  general  ware- 
house business  with  a  certain  one  of  its  storehouses  used  in 
the  prosecution  of  its  said  business  located  at,  to  wit,  street 

numbers  from to street  in  said 

city;  and  plaintiff  says  it  was  the  duty  of  said  defendants  to 
use  reasonable  and  ordinary  care  in  the  construction  of  said 
premises  and  all  parts  thereof,  including  elevators  and  elevator 
shafts  therein,  to  make  the  same  safe  for  persons  who  might 
from  time  to  time  rightfully  and  with  due  care  and  caution  for 
their  own  safety,  enter  and  do  work  in  and  about  said  prem- 
ises ;  and  it  was  also  the  duty  of  said  defendants  to  use  reason- 
able and  ordinary  care  to  keep  said  premises  and  the  parts 
thereof  as  aforesaid  in  a  reasonably  safe  condition  of  repair 
and  to  surround  the  elevator  shaft  with  a  rail  or  guard  of 
some  kind  to  prevent  persons  rightfully  and  with  due  care 
and  caution  for  their  own  safety  as  aforesaid  in  said  prem- 
ises, from  walking  into  and  falling  down  the  same ;  and  it 
was  also  the  duty  of  said  defendants  to  use  reasonable  and 
ordinary  care  in  the  lighting  of  said  premises  to  make  the 
same  reasonably  safe ;  and  plaintiff  says  that,  on,  to  wit,  the 
date  aforesaid,  he  was  in  the  employ  of  C,  and  was 
ordered  by  said  C  to  go  to  said  warehouse  of  said  defend- 
ants, where  said  C  had  certain  printing  presses  and  other 
machinery  stored,  for  the  purpose  of  bringing  certain  of  said 
presses  to  its,  the  said  C's  new  building;  and  plaintiff  says 
that  in  pursuance  of  said  order,  he  went  to  said  warehouse 
of  said  defendants,  and  was  rightfully  in  and  walking  about 

on,  to  wit,  the floor  of  the  same,  using  due  care 

and  caution  for  his  own  safety;  but  he  says  that  said  defend- 
ants, not  regarding  their  duty  toward  him  as  aforesaid,  care- 
lessly and  negligently  constructed  a  certain  elevator  in  said 
building,  which  passed  up  and  down  through  the  various  floors 
thereof  without  enclosing  by  means  of  rail  or  otherwise  the 

opening  in,  to  wit,  the floor,  upon  which  he,  the 

said  plaintiff,  was  walking  rightfully  and  with  due  care  and 
caution  for  his  own  safety  as  aforesaid,  and  by  reason  of  the 
failure  of  said  defendant  to  properly  guard  the  opening  in 
said  floor  by  means  of  a  railng  or  otherwise,  and  by  reason  of 
the  further  failure  of  said  defendant  to  properly  light  said 
premises,  he,  the  said  plaintiff,  while  so  in  and  about  said  prem- 
ies Shoninger  Co.  v.  Mann,  219 
111.  242  (1906). 


910  ANNOTATED    FORMS   OF    TLEADING    AND    ritACTICE 

ises  as  aforesaid,  stepped  into  and  fell  from,  to  wit,  the 

or floor  of  said  preniist'S  through  the  opening  in 

said  floor  to  the  basement  below,  and  was  thereby  greatly 
hurt,  bruised  and  wounded,  divers  bones  of  his  body,  to  wit, 
one  femur  and  its  neek,  were  fraetured  and  he  was  other- 
wise injured  both  internally  and  extenmlly,  and  bfcauK'  sick, 
sore,  lame  and  disordered,  and  so  remained  for  a  lon^  spaee 
of  time,  to  wit,  from  thenee  hitherto,  during  all  of  whieli  time, 
he,  the  plaintiff,  suffered  great  j)ain  both  in  body  and  in  mind, 
and  still  continues  to  suffer  such  pain;  and  by  reason  of  the 
injuries  occasioned  as  aforesaid  he  was  prevented  and  hindered 
from  attending  to  his  business,  employment,  occupation  and 
affairs,  and  was  thereby  deprived  of  divers  wages,  salaries, 
incomes,  profits  and  gains,  which  he  might  and  otherwise  would 
have  earned,  ac(iuii'ed  and  received;  anil  by  reason  of  tlu' 
premises  also  hi>  was  compelled  to  and  did  pay  out  divers  sums 
of  money  in  and  about  endeavoring  to  be  cured  of  his  said 
wounds,  bruises,  hurts  and  fractures,  occasioned  as  aforesaid. 
Wiierefore,  etc. 

1541  Excavation  or  pit  unguarded,  Narr.  (Va.) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the  ....  day  of 

the   defendants   were   and   had   been    for   some   time 

prior  to  that  date,  the  owners  and  occupiers  of  a  certain  lot  of 

land  in  the  county  of ,  situateil  on  the 

side  of street  between and 

streets,  and  had  on  and  before  the  said  date  dug  and  excavated 
a   deep   hole  and  pit   on   said   property,   running   along   with 

and  immediately  adjoining  said    street,  to  wit, 

about    feet   deej)   and   al)out    feet 

long,  and  that  water  to  the  depth  of  about feet 

stood  therein;  and  that  thereupon  it  became  and  was  the  duty 
of  the  said  defendant  to  use  due  care  and  caution  to  provide 

for  the   safety   of  persons   passing   along   said    

street,  and  to  fence  or  otherwise  properly  guard  the  said  prop- 
erty so  that  persons  so  passing  along  said  street  would  not 
fall  into  the  said  hole,  pit,  or  excavation. 

Yet,  the  said  defendants,  disreganling  their  duty  in  this 
respect,  and  wholly  failing  therein,  on  the  day  and  year  afore- 
said, did  not  use  due  care  and  caution  to  provide  for  the  safety 

of  persons  passing  along  said street,  as  aforesaid, 

but,  on  the  contrary,  negligently,  recklessly  and  carelessly 
failed  to  fence  in  or  otherwise  properly  guard  the  property 
aforesaid,  wherein  was  a  hole,  pit,  excavation  aforesaid,  of 
all  which  said  defendants  on  the  day  and  year  aforesaid  had 
know^ledge;  whereby  the  plaintilT's  intestate  without  any  fault 
or   negligence    on    his    part,    and    while    passing    along    said 

street,  as  he  had  a  perfect  right  to  do,  on  the 

day  and  year  aforesaid,  in  consequence  of  the  failure  of  the 


PERSONAL   INJURIES  911 

said  defendants  to  fence  in  or  otherwise  properly  guard  the 
said  property,  fell  and  was  thrown  into  the  hole,  pit  and 
excavation  aforesaid,  and  into  the  water  aforesaid,  and  was 
then  and  there  instantly  drowned ;  wherefore,  the  said  plain- 
tiff by  virtue  of  the  statute  in  such  cases  made  and  provided, 

brings  this  suit  and  claims  damages  in  the  sum  of 

dollars, 

1542  Exhibition  of  horses,  improper  management,  Narr.  (111.) 

For  that  whereas,  the  said  defendant  company  heretofore, 

to  wit,  on  the   ....   day  of   ,  19 . . ,  owned  and  was 

possessed  of  a  certain  building  in  the  city  of   , 

county  of and  state  of  Illinois,  that  a  part  of  said 

building  consisted  of  a  large  amphitheater;  that  said  amphi- 
theater consisted  of  a  large  open  space  or  arena  in  the  center, 
surrounded  by  a  series  of  stationary  seats ;  that  at  the  time 
and  place  aforesaid  the  said  defendants  offered  for  sale  and 
sold  horses  at  public  auction  in  said  building;  that  the  horses 
so  offered  for  sale  by  said  defendants  were  led  into  the  said 
arena  and  there  exhibited  under  the  direct  and  immediate 
supervision  and  control  of  said  defendants;  that  in  conduct- 
ing said  sales  said  defendants  invited  all  persons  wishing  to 
bid  upon  the  horses  so  offered  for  sale  as  aforesaid  to  enter 
said  building  and  the  said  arena  and  inspect  the  horses  so 
offered  for  sale. 

And  the  plaintiff'  avers  that,  on,  to  wit,  the  day  and  year 
aforesaid,  at  the  place  aforesaid,  the  said  plaintiff  was  by  said 
defendants,  and  each  of  them,  then  and  there  invited  to  enter 
said  building  and  arena  and  inspect  certain  horses  which  were 
then  and  there  being  exhibited  by  said  defendants  for  sale; 
that  said  plaintiff",  in  compliance  with  such  invitation  of  said 
defendants,  did  then  and  there  enter  said  building  and  arena 
and  said  defendants  then  and  there  exhibited  and  offered  for 
sale  to  said  plaintiff  and  to  all  other  persons  wishing  to  inspect 
or  purchase  said  horses,  a  certain  horse. 

And  the  plaintiff  further  avers,  that  said  defendants,  while 
exhibiting  said  horse  for  inspection  and  sale  as  aforesaid, 
carelessly,  negligently,  improperly  and  wilfully  whipped  said 
horse ;  that  by  reason  of  such  whipping  of  the  said  horse  at 
the  time  said  horse  was  so  exhibted  by  said  defendants  and 
was  so  being  inspected  and  examined  by  said  plaintiff,  said 
horse  was  caused  to  suffer  great  pain  and  was  thus  rendered 
highly  nervous,  excitable  and  dangerous ;  that  as  said  plaintiff 
was  so  inspecting  and  examining  said  horse  as  aforesaid,  the 
said  defendants  carelessly,  negligently,  improperly,  wilfully 
and  suddenly  and  without  any  warning  to  said  plaintiff,  struck 
said  horse  a  violent  blow  with  a  whip ;  that  by  means  of  said 
careless,  negligent,  improper  and  wilful  conduct  of  said  defend- 
ants, and  of  each  of  them,  and  while  the  said  plaintiff  was 


912  ANNOTATED    FORMS   OF    FLEADING    AND    THACTICE 

in  the  exercise  of  all  due  care,  caution  and  diligence  for 
his  own  safety,  the  said  horse  becaiue  fractious  and  ran  upon 
and  against  the  plaintiff  with  great  force  and  violence  and  said 
plaintiff  thereby  then  and  there  received  injuries  about  the 
left  side  of  his  body,  left  arm  and  about  his  head  and  about  his 
back,  spine  and  kidneys,  and  other  parts  of  his  body,  inter- 
nally, externally,  permanently  and  otherwise,  and  became 
sick,  sore,  lame  and  disabled,  and  so  remained  from  thence 
hitherto,  during  all  of  which  time  he  suffered  great  pain,  and 
was  hindered  and  prevented  from  attemling  to  his  affairs  and 
business,  and  more  particularly  from  following  his  occupation 
as  a  teaming  contractor  and  horse  dealer,  at  which  he  was 
capable  of  making  and  did  make  large  sums  of  money,  to  wit, 

($ )  dollars  i)er  month ;  and  plaintiff  was 

compelled  to  and  did  lay  out  divers  large  sums  of  money,  to 

wit, ($ )  dollars,  in  aiul  about  endeavoring 

to  be  cured  of  his  said  injuries  occasioned  as  aforesaid.  To 
the  damage,  etc. 

1543  Explosion  and  panic  in  street  car,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the  ....  day  of ,  19.  ., 

and  prior  thereto,  the  said  defendants,  C  I)  and  C  T,  were  cor- 
porations duly  organized  and  existing  under  and  by  virtue  of 
the  laws  of  the  state  of  Illinois,  and  were  engaged  in  the 
business  of  transporting  passengers  in  street  cars  for  hire  in 
the  city  of ,  in  the  county  of afore- 
said, and  were  possessed  of  divers  cars  which  were  propelled 
by  electricty,  and  were  commonly  known  as  electric  street 
cars,  and  w'cre  also  possessed  of  certain  rails  or  tracks  which 
\vere  laid  upon  and  along  a  certain  public  highway  in  the  said 
city  of ,  to  wit,  upon  I)  avenue;  and  the  plaintitT  fur- 
ther avers  that  she  then  and  there,  on,  to  wit,  the  said   .... 

day  of ,  19.  .,  and  in  the  county  aforesaid,  became  a 

passenger  for  hire  upon  one  of  defendants'  said  electric  cars, 
and  then  and  there  paid  her  fare  as  such  passenger;  that  it 
then  and  there  became  and  was  the  duty  of  the  said  defendants 
to  safely  transport  the  plaintiff  as  such  passenger  in  their 
said  car  and  over  their  said  tracks  along  said  D  avenue  from 
its  intersection  with  a  certain  public  highway  in  said  city,  to 
wit,  E  avenue,  to  the  intersection  of  said  D  avenue  with  another 
public  highway  in  said  city,  to  wit,  C  street;  yet  the  plaintiff' 
avers  that  the  said  defendant  corporations  wholly  failed  in 
their  duty  in  that  behalf,  and  by  their  servants  then  and  there, 
on  said  D  avenue,  at  or  near  to  the  intersection  of  S  avenue, 
operated,  controlled  and  managed  said  car  upon  which  the 
plaintiff  was  a  passenger  as  aforesaid,  so  negligently  and  care- 
lessly, and  wdth  such  a  want  of  due  care  for  the  personal  safety 
of  the  plaintiff,  that  by  reason  of  such  negligence  and  want  of 
care    by    the    defendants,    a    sudden    and    violent    explosion 


PERSONAL   INJURIES  913 

occurred  in  or  about  the  machinery  or  appliances  situated  at 
the  front  end  of  the  car,  by  means  of  which  the  driver  of  the 
car,  commonly  known  as  the  motorman,  was  accustomed  to 
control  the  motions  of  the  car,  which  explosion  was  accompa- 
nied by  a  dazzling  flash  of  fire  which  caused  the  passengers 
on  said  car  to  believe  that  the  same  was  on  fire,  and  as  an 
immediate  and  natural  consequence  of  said  explosion,  and  of 
said  flash  of  fire,  a  panic  took  place  among  the  passengers  on 
said  car,  and  a  stampede  for  the  door  set  in,  in  the  course  of 
which  the  plaintiff,  while  exercising  due  care  and  diligence  for 
her  own  safety,  was  hurled  violently  to  and  upon  the  floor  of 
said  car,  and  while  upon  the  floor  of  said  car  was  trampled 
upon  by  other  passengers  in  said  car,  they  being  then  in  a 
state  of  panic  caused  by  said  negligence  of  defendants,  as 
aforesaid,  whereby  and  by  reason  whereof  the  plaintiff  sus- 
tained great  and  severe  injuries,  and  was  greatly  wounded, 
hurt  and  bruised,  and  suffered  a  violent  shock  to  her  nervous 
system,  and  severely  strained,  bruised  and  injured  her  right 
knee,  and  broke  the  knee  cap  of  said  knee,  and  became  other- 
wise sick,  sore  and  disordered,  and  remained  so  for  a  long  time, 
to  wit,  from  thence  hitherto ;  and  by  reason  of  the  injuries 
aforesaid  said  plaintiff  suffered  great  pain  and  anguish,  and 
was  hindered  and  prevented  from  attending  to  her  ordinary 
business  and  affairs,  and  was  deprived  of  various  profits  and 
gains  which  she  otherwise  could  and  would  have  had,  and  will 
be  hereafter  hindered  and  delayed  from  following  her  busi- 
ness and  affairs  as  she  otherwise  could  and  would  have  done. 
And  the  plaintiff  further  avers  that  when  she  was  so  thrown 
upon  the  floor  of  said  car,  as  aforesaid,  certain  eye-glasses,  or 
spectacles,  which  she  wore,  and  which  she  was  obliged  to 
wear,  in  order  to  attend  to  her  said  business  affairs,  were 
broken  and  destroyed,  which  eye-glasses,  or  spectacles,  were 

reasonably  worth  the  sum  of,  to  wit, dollars. 

Wherefore,  etc. 

1544  Explosion,  carbomc  acid  gas,  Narr.  (Mich.) 

For  that  whereas  the  said  defendant,  at  the  time  of  the 
committing  of  the  grievances  hereinafter  alleged,  was  a  cor- 
poration organized  and  existing  under  the  laws  of  the  state 
of  Michigan,  and  engaged  in  the  retail  drug  and  soda  water, 

etc.,  business  in  the  city  of That  among  other 

places,  defendant  conducted  at  said  time  and  for  a  consider- 
able period  prior  thereto,  a  drug  store  at,  to  wit.  No 

avenue,  in  said  city,  and  in  the  conduct  of  said 

store,  operated  and  maintained  a  fountain  from  which  it 
dispensed  among  other  liquids,  soda  and  vichy  waters.  That 
in  the  maintenance  and  operation  of  said  fountain  and  for  the 
purposes  of  supplying  the  same  with  such  waters,  it  used 
metal   tanks  which,   at   the   time   of   the   committing   of   the 


914  ANNOTATED  FORMS  OF   PLEADING   AND   PKACTICE 

grievances  hereinafter  alleged  and  for  a  long  time  prior 
thereto,  it  was  the  practice  of  said  defendant  to  fill,  in  the  base- 
ment underneath  the  lirst  floor  of  said  premises,  with  the 
waters  required  for  said  fountain  and  with  carbonic  acid  gas 
under  a  high  pressure.  That  at  the  time  of  the  committing  of 
said  grievances,  said  defendant  possessed,  used  and  maintained 
in  the  basement  of  said  premises,  an  apparatus  consisting  of. 
to  wit,  a  pressure  gauge  with  two  hose  attachments,  one  of 
which,  when  in  use,  connects  with  the  drum  from  which 
carbonic  acid  gas  is  taken  and  the  other  with  the  metal  tank 
to  be  filled  as  aforesaid.  That  the  gas  contained  in  the  drum 
is  released  by  means  of  the  turning  of  a  key  which  opens  a 
valve  and  the  gas  then  passes  from  tlie  drum  through  tiie  tube 
connecting  with  the  gauge  and  thence  through  the  tube  con- 
nected with  the  tank  to  be  filled,  which  gauge,  when  in 
proper  order,  registers  the  pressure  in  the  tank  while  the 
same  is  being  filled  with  gas. 

That  at  said  last  mentioned  time,  there  was  connected  with 
said  apparatus  an  automatic  shut-off  or  device  which,  if  in 
good  order,  could  be  set  at  any  recjuired  pressure,  and  if  so 
set,  would,  when  the  required  })ressure  was  reached,  automat- 
ically shut  off  the  flow  of  gas  and  thereby  prevent  an  excess 
quantity  of  gas  from  being  forced  into  the  metal  tanks,  and 
rendered,  when  in  perfect  condition,  the  filling  of  tanks  with 
carbonic  acid  gas,  at  the  time  of  the  committing  of  the  griev- 
ances aforesaid,  reasonably  safe,  especially  if  the  tank  to  be 
filled  was  not  defective  and  capable  of  standing  the  pressure  to 
which  the  gauge  was  set. 

That  at  the  time  aforesaid,  in  the  filling  of  said  tanks,  it  was 
and  had  been  for  a  long  time  prior  thereto,  the  practice  of 
said  defendant,  while  the  gas  was  being  put  in  such  tank,  to 
require  of  its  employees  engaged  therein,  to  rock  or  shake  the 
same  in  order  that  the  water  in  such  tank  might  more  readily 
absorb  the  gas  and  permit  of  greater  quantities  of  said  gas  to 
be  put  therein.  That  at  the  time  of  the  committing  of  said 
grievances,  said  tanks,  when  in  proper  condition  and  not 
defective,  would  permit  with  safety  the  placing  therein  of  a 
pressure  of,  to  wit,  five  hundred  pounds  of  gas.  That  the  filling 
of  such  tanks  Avas  attended  with  the  danger  of  explosion  if 
too  large  a  quantity  of  gas  was  forced  therein  or  if  the  said 
tank  was  defective,  there  was  danger  of  such  tank  exploding, 
even  if  the  gas  pressure  in  tank  was  considerably  less  than  five 
hundred  pounds;  and  plaintiff  further  avers  that  at  the  time 
of  the  committing  of  the  grievances  aforesaid,  there  were  no 
means  of  determining  the  gas  pressure  in  such  tanks,  except 
as  the  same  was  indicated  by  the  gauge  aforesaid,  and  that  if 
the  apparatus  or  gauge  aforesaid  was  defective,  or  out  of  order 
or  failed  to  properly  register  the  pressure,  or  the  automatic 
shut  off  was  defective  or  out  of  order,  or  was  not  properly 
set  or  regulated,  there  was  great  danger  of  overloading  the 


PERSONAL   INJURIES  915 

tank  to  be  filled  with  carbonic  acid  gas  and  cause  it  to  explode, 
particularly  a  tank  which  was  defective,  worn  or  in  a  weak- 
ened condition;  all  of  which  facts  were  then  and  there  well 
known  to  the  defendant.    And  plaintiff  avers  that  by  reason  of 
the  premises,  well  knowing  such  danger,  it  then  and  there 
became  the  duty  of  said  defendant  to  provide  and  use  only 
safe  and  sound  tanks,  in  no  wise  weak  or  defective  and  to 
provide  its  employees  with  a  safe  place  to  work  in  while  filling 
the  same,  and  to  keep,  use  and  maintain  in  its  establishment 
aforesaid,   for   the   proper   protection   of   its   employees   who 
might  or  should  be  engaged  in  filling  tanks  in  said  basement 
with  carbonic  acid  gas,  a  safe  and  proper  apparatus,  gaiige  and 
automatic  shut-off  and  have  and  keep  the  same  respectively  in 
good  running  order  and  not  to  permit  the  same  to  get  out  of 
order  or  to  become  defective,  and  to  have  and  keep  the  same  in 
charge  of  a  competent  person  to  operate,  regulate  and  control 
the  same  while  such  apparatus  and  gauge  was  being  used  in 
connection  with  the  filling  of  such  tanks  as  aforesaid,  par- 
ticularly while  the  tank  was  being  rocked  or  shaken;  and  to 
see  to  It  that  the  automatic  shut-off  was  in  good  order  and 
properly  set,  and  to  then  and  there  fully  acquaint  its  employees 
who  were  or  might  be  engaged  in  or  assisting  in  filling  said 
tanks,  of  the  dangers  attendant  thereat  as  aforesaid  and  to 
fully  apprise  them  of  the  use  of  said  gas  and  apparatus  and 
the  dangers  connected  therewith  and  of  the  operating  of  said 
apparatus  and  the  gauge  and  automatic  shut-off  which  regu- 
lated the  gas  pressure,  and  if  defective,  of  such  condition,  par- 
ticularly while  such  tanks  were  being  filled  with  gas. 

That  said  defendant  wholly  neglected  its  duty  in  the  several 
matters  aforesaid;  and  failed  and  neglected  then  and  there  at 
the  time  of  the  committing  of  the  grievance  aforesaid,  to  fur- 
nish sound  and  safe  tanks  to  be  filled ;  and  did  not  then  and 
there  or  at  any  other  time,  apprise  plaintiff's  intestate  of  the 
dangers  attendant  to  the  filling  of  such  tanks  with  carbonic 
acid  gas  as  aforesaid,  or  in  the  rocking  or  shaking  of  the 
same  while  it  was  being  filled  with  gas;  and  did  not  then  and 
there  or  at  any  other  time,  inform  him  of  the  proper  and  safe 
method  of  operating  the  apparatus  and  gauge  and  shut-off 
used  in  regulating  and  registering  the  pressure  of  gas  so  put 
in  the  tanks  as  aforesaid,  or  that  such  apparatus  or  shut-off 
was  out  of  order  or  defective ;  and  did  not  then  and  there  fur- 
nish a  safe  and  perfect  apparatus  or  automatic  shut-off  as 
aforesaid  or  see  to  it  that  at  the  time  of  the  committing  of 
the  grievances  aforesaid  the  same  if  in  perfect  condition  was 
properly  set ;  and  did  not  then  and  there  or  at  any  other  time 
acquaint  said  plaintiff's  intestate  with  the  danger  that  might 
or  could  arise  from  overloading  the  tanks  which  were  to  be 
filled  with  such  gas,  particularly  the  tank  which  exploded  and 
caused  the  death  of  plaintiff's  intestate  as  hereinafter  set  forth; 
and  did  not  then  and  there  or  at  any  other  time,  apprise  plain- 


916  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

tiff's  intestate  of  the  defective  condition  of  the  lank  aforesaid 
or  furnish  him  with  a  safe  place  to  work  in  while  assisting  in 
filling  said  tank;  and  did  not  furnish  him  with  safe  appli- 
ances to  work  with  ;  and  did  not  then  and  there  properly  safe- 
guard said  plaintiff's  intestate  against  the  explosion  of  said 
tank. 

And  plaintiff'  further  avers  that  her  said  intestate,  while 
employed  as  a  porter  or  helper  in  said  defendant's  drug  store 
or  establishment  aforesaid,  he  having  entered  such  employ 
shortly  before  the  committing  of  the  grievances  hereinafter 

alleged,  to  wit,  the day  of ,  19.  .,  he  being  then 

and  there  wholly  ignorant  of  the  danger  attendant  the  filling 
of  said  tanks  as  aforesaid,  and  being  wholly  unfamiliar  with 
the  apparatus,  gauf^'e  or  automatic  shut-off'  hereinbefore  men- 
tioned, and  being  ignorant  of  the  defective  condition  thereof 

respectively,  on,  to  wit,  the  ....  day  of ,  19.  .,  while 

assisting,  by  defendant's  direction,  an  employee  of  said 
defendant  (who  had  been  placed  by  said  defendant  in  charge 
of  that  branch  of  work  in  its  said  store),  in  filling  a  tank  in 

the  basement  of  said  defendant's  premises  at   

avenue,  aforesaid,  with  carbonic  acid  gas,  anil  in  rocking  or 
shaking  the  same,  and  while  said  tank  was  in  a  deft'ctive 
condition  and  under  a  pressure  of  less  than,  to  wit,  two  hun- 
dred pounds,  and  while  said  apparatus  and  gauge  and  auto- 
matic shut-off  aforesaid  were  out  of  order  and  in  a  defective 
condition,  and  while  said  apparatus  was  not  being  operated, 
regulated  or  controlleil  in  a  proper  manner,  and  wliile  the 
same  was  not  in  charge  of  or  being  operated  by  a  competent 
person,  and  while  said  negligence  and  omissions  on  the  part  of 
said  defendant  were  then  and  there  unknown  to  said  plaintiff's 
intestate  as  aforesaid,  and  were  well  known  to  the  defend- 
ant, or  if  not  known  could  or  would,  by  the  exercise  of  reason- 
able care  on  its  part  have  known  thereof,  and  of  plaintiff's 
intestate's  ignorance  in  the  ju'emises,  and  while  plaintiff's 
intestate  was  exercising  due  care,  and  without  fault  or  negli- 
gence on  his  part,  said  tank  exploded  with  gi-eat  force  and 
violence,  then  and  there  killing  plaintiff's  intestate  and 
mutilating  and  disfiguring  his  head,  limi)s  and  body. 

And  plaintiff'  avers  that  the  death  of  her  said  intestate  was 
caused  by  the  wrongful  neglect  and  default  of  the  defendant  as 
aforesaid,  and  that  if  death  had  not  ensued,  plaintiff"s  intestate 
would  have  been  entitled  to  maintain  an  action  against  and 
recover  damages  from  the  defendant  in  respect  thereof;  and 

plaintiff  further  avers  that  on,  to  wit,  the  ....  day  of , 

19..,  she  was  duly  appointed  by  the  probate  court  for  the 

county  of ,  state  of  Michigan,  the  administratrix 

of  the  estate  of ,  deceased,  and  afterwards  duly 

qualified  as  such.  And  plaintiff  brings  here  into  court  her  let- 
ters testamentary,  whereby  it  fully  appears  that  she  has  been 
empow^ered  to   administer  the   estate   of  said   deceased;   and 


PERSONAL    INJURIES  917 

plaintiff  further  avers  that  the  i'ollowiug  are  the  persons 
entitled  by  law  to  the  general  property  of  said  deceased  under 
the  statute  of  Michigan  governing  the  disposition  of  the  per- 
sonal property  of  intestates,   viz. :  the  plaintiff,  who   is  the 

widow  of  said  deceased,  and  ,  aged  ....   years, 

,  aged    ....   years,  respectively,  or  thereabouts, 

children  of  said  deceased;  and  plaintiff  further  avers  that  the 
said  widow  and  children  were  dependent  upon  said  deceased 
for  their  support  and  maintenance;  that  he  was  accustomed 

to  earn  large  wages,  to  wit,  $ per  month,  in  his  usual 

vocation,  out  of  which  he  supported  and  maintained  your 
petitioner  and  children.  That  by  his  death  they  have  been 
deprived  of  the  means  of  support  and  suffer  pecuniary  injury, 
and  plaintiff  says  that  by  virtue  of  the  statute  made  in  such 
case  and  provided,  the  defendant  has  become  liable  to  pay  to 
this  plaintiff  as  such  administratrix,  $ ;  and  there- 
fore she  brings  suit. 

1545  Fairs  and  carnivals,  action 

A  municipality  is  liable  for  an  injury  resulting  from  unsafe 
structures  put  up  for  exhibitors  at  carnivals  and  street  fairs 
held  under  its  authority  in  streets  or  public  places,  for  the  rea- 
son that  a  municipality  has  no  power  to  grant  permission  for 
such  purposes  and  that  such  occupancy  of  the  streets  is  a  public 
nuisance  per  se.^^"^  A  city  which  invites  its  patrons  to  seats 
upon  platforms  to  witness  games,  sports  and  races  is  liable 
for  injuries  sutained  by  a  failure  to  exercise  due  care  in  the 
erection  and  maintenance  of  these  places.^^® 

1546  Fairs  and  carnivals,  Narr.  (111.) 

For  that  whereas  the  said  defendant,    ,  was, 

on  or  about  the  ....  day  of ,  19.  .,  a  municipal  cor- 
poration, organized  and  existing  under  the  laws  of  the  state 
of  Illinois,  and  on  the  day  and  date  aforesaid  was  in  charge 
of  and  controlled  and  managed  certain  streets  situated  in 
the  said  city,  county  and  state  aforesaid,  and  among  other 
streets  said  city  was  possessed  of,  managed  and  controlled  two 

certain  intersecting  streets  known  as street  and 

avenue,  in   ,   county, 

Illinois. 

Plaintiff  avers  that  it  then  and  there  became  and  was  the 
duty  of  the  said  defendant  to  so  manage  and  control  its  said 
streets  as  not  to  injure  the  plaintiff;  yet,  the  said  defendant 

107  Van  Cleef  v.  Chicago,  240  111.  ^°^  Logan  v.  Agricultural  Gociet7, 

318,  324,  328  (1909).  156  Mich.  537,  541   (1909). 


918  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

well  knowing  its  duty  in  this  behalf  did  knowingly  authorize 
and  permit  a  certain  building  to  be  erected  upon  and  in  a 
street  of  said  city,  at  the  place  aforesaid,  to  wit,  at  and  in 

the  intersection  of .  street  and 

avenue,  which  said  building  was  erected  in  an 

unsafe  and  dangerous  manner,  particularly  in  that  a  cfrtain 
stairway  in  and  about  the  said  buililing  was  unguarded  by 
guard  rails. 

2.  And  the  plaintiff  avers  that  it  also  then  and  th«'rt'  became 
and  was  the  duty  of  the  said  ilfft-iidant  to  so  eonti-ol  and  man- 
age its  said  streets  and  to  so  take  charge  of  them,  as  not  to 
inflict  an  injury  upon  persons  rightfully  upon  said  streets; 
yet,  the  said  city,  well  knowing  its  duty  in  this  behalf,  on  the 
day  and  date  aforesaid,  allowed,  authorized  and  permitted  a 
certain  building  to  be  erected  at  or  near  the  intersection  of 
the  two  streets  aforesaid,  and  within  the  intersection  of  the 
streets  aforesaid,  and  upon  antl  in  one  or  the  other  of  said 
streets,  which  said  permission  was  granted  by  the  city  council 

of  said  city  of   at   the  regular  meeting  of  said 

city  council,  held , ,  19.  .,  and  which  permi.ssioii 

was  in  words  and  figuics  as  follows,  to  wit:  (Insert  copy  of 
order  of  permission.) 

Plaintiff  further  avers  that  acting  uf)on  the  said  permission, 
and  in  pui'siumce  thereof,  a  certain  building  was  erected  upon 
and  in  said  streets  of  said  city,  as  aforesaid,  which  said  build- 
ing was  for  the  purpose  of  giving  entertainments  and  per- 
formances, and  was  in  direct  violation  of  a  certain  ordi- 
nance of  the  city  of ,  which  was  known  as  section 

of  the  city  ordinances  of  the  city  of , 

and  which  said  ordinance  was  in  full  force  and  efl'cct  at  the 
time,  and  which  said  ordinance  was  in  the  words  and  figures 
following,  to  wit :     (Insert  copy  of  ordinance). 

3,  And  the  plaintiff  avers  that  it  also  became  and  was  the 
duty  of  the  said  defendant  to  so  keep,  manage  and  control 
its  streets  as  not  to  injure  persons  rightfully  thereupon;  yet, 

the  said  defendant,  city  of ,  on  or  about  the  date 

aforesaid,  knowingly  permitted  and  allowed  and  authorized  a 
certain  building  to  be  erected  and  to  remain  for  a  consider- 
able space  of  time  upon  or  in  the  intersection  of 

street  and avenue,  two  intersecting  streets  in  the 

city  of   ,  county  and  state  aforesaid;  and  which 

said  building  was  situated  upon  and  in  the  streets  of  the  said 
city,  and  which  had  remained  upon  and  in  said  streets  for  a 
considerable  space  of  time,  whereby  said  building  became  and 
was  a  nuisance,  and  concerning  which  the  city  knew  or  should 
have  known,  and  which  said  building  was  in  an  unsafe  and 
unstable  condition  in  this,  to  wit,  that  the  said  stairs  leading 
to  and  from  said  building  were  unprotected  and  without  a 
guard  rail,  and  concerning  which  the  defendant  knew  or 
should  have  known. 


PERSONAL   INJURIES  919 

By  reason  of  the  several  breaches  of  duty  aforesaid, 
said  plaintiff,  while  coining  out  of  said  building,  together  with 
a  large  number  of  other  persons,  and  while  in  the  exercise 
of  all  due  care  and  caution  for  her  own  safety,  was  pushed 
and  crowded  off  of  and  from  said  stairway,  and  by  reason 
thereof  fell  to  and  upon  the  ground  and  was  greatly  hurt, 
bruised,  wounded  and  injured,  particularly  in  and  about  her 
right  leg,  which  was  broken  and  sprained ;  and  by  reason 
thereof  plaintiff  became  and  was  sick,  sore,  lame  and  disabled, 
and  has  been  unable  to  do  any  work  and  will  always  remain 
unable  to  do  any  work,  and  will  always  continue  to  be  sick, 
sore,  lame  and  disabled,  and  has  laid  out  and  expended  divers 
large  sums  of  money  in  and  about  endeavoring  to  be  cured 

of  her  injuries,  to  wit,  the  sum  of ($ )  dollars. 

Wherefore,  etc. 

1547  Fenders  defective,  Narr.  (HI.) 

For  that  whereas  heretofore,  on,  to  wit,  the  day  of 

,  19.  .,  the  defendant  was  possessed  of  and  operating 

a  certain  street  railway   extending  longitudinally  upon  and 

along  street,  then  and  there  a  public  highway 

in  the  city  of ,  in  the  county  and  state  aforesaid, 

and  upon  which  said  railway  the  defendant  then  and  there 
operated  certain  trains  of  street  cars;  that  at  the  time  and 
place  aforesaid  plaintiff  was  a  minor  of  tender  years,  to  wit, 

years  of  age,  and  was  then  and  there  traveling 

westward  across  defendant's  said  railway  tracks  upon  said 

public    highway,    to    wit,    between    street    and 

court  in  said  city,  and  while  so  traveling  and 

while  he  was  exercising  such  care  as  could  reasonably  be 
expected  of  one  of  his  years  and  experience,  the  defendant, 
through  certain  of  its  servants  in  that  behalf,  was  then  and 
there  operating  a  certain  train  of  street  cars  southward  upon 
and  along  said  railway.  That  there  was  long  prior  to  and 
then  and  there  a  certain  section  of  a  certain  city  ordinance 
of  the  city  of ,  in  full  force  and  effect,  which  pro- 
vided as  follows:  (Insert  fenders'  ordinance).  That  the 
southerly  or  front  car  of  said  train  was  a  grip  car  and  that 
the  defendant  did,  in  obedience  to  said  ordinance,  long  prior 
to  and  then  and  there  provide  and  maintain  a  fender  on  the 
forward  or  southerly  end  of  said  grip  ear  of  steel  and  of  the 
basket  kind,  attached  to  the  front  end  of  said  grip  car  as  and 
for  the  purpose  aforesaid ;  but  then  and  there  negligently  per- 
mitted said  fender  to  become  and  remain  in  such  a  defective 
and  improper  condition  of  repair  that  it  would  not  serve  the 
purpose  for  which  it  was  so  required,  provided  and  used,  in 
this,  that  said  fender  was  so  high  above  the  track  and  loose 
and' dilapidated  that  it  would  permit  a  child  or  other  person 
to  pass  under  said  fender  in  the  event  of  his  being  overtaken 


920  ANNOTATED   FORMS   01'    I'LLADINCJ    AND    PHACTICK 

and  struck  by  said  fender  while  upon  the  track  upon  which 
said  car  was  running. 

By  reason  of  which  premises  said  fender  then  and  there 
struck  and  knocked  the  phiintifT  down,  and  as  a  direct  result 
and  in  consequence  of  said  defective  and  improper  condition  of 
said  fender  the  plaintiff  passed  under  said  fender  and  car 
instead  of  falling  upon  top  of  said  fender  and  being  sustained 
by  said  fender,  as  he  would  have  done  if  said  fender  had  been 
in  proper  condition ;  that  one  or  more  of  the  wheels  of  said  car 
thereby  then  and  there  passed  over  one  of  plaintiff's  feet,  and 
thereby  then  and  there  so  crushed  and  mangled  his  said  foot 
that  it  became  necessary  to  amputate  his  said  foot  and  part  of 
his  leg,  and  same  were  so  amputated  a  short  time  afterwards; 
that  divers  other  bones,  ligaments,  muscles,  tendons,  and 
membranes  of  the  plaintiff's  body  were  also  thereby  then  and 
there  sprained,  dislocated,  broken  and  otluTwise  injured;  that 
he  was  disfigured,  cut,  bruised  and  wounded  about  his  head, 
face,  limbs  and  body  and  sustained  serious  injuries  to  divers 
of  his  internal  organs  and  a  serious  shock  and  injury  to  his 
spine  and  nervous  system;  and  that  as  a  direct  result  and  in 
conse(iuence  thereof  he  has  ever  since  suffered  and  will  con- 
tinue permanently  to  suffer  great  pain,  and  has  become  and  is 
permanently  crippled,  sick,  sore,  disordered,  and  incapacitated 
from  attending  to  or  transacting  any  ordinary  business  or 
affairs,  as  a  result  of  which  he  will  be  deprived  of  great  gains 
and  profits  which  he  might  and  otherwise  would  have  made  and 
accjuired.     To  the  damage,  etc. 

1548  Fenders  or  headlights,  Narr.  (Mich.) 

For  that  whereas  the  defendant,  at  the  time  of  the  com- 
mitting of  the  grievances  hereinafter  set  forth,  and  for  a  long 
time  prior  thereto,  was  a  corporation  organized  under  the 
laws  of  the  state  of  Michigan,  and  engaged  as  a  common  car- 
rier of  passengers ;  that  as  such  carrier  it  operated  an  electric 

railroad  running  from  the  city  of , , 

to  the  city  of ,  in  the  state  of  ^lichigan,  and  else- 
where; that  it  operated  and  ran  its  cars  propelled  by  electricity 
on  and  over  tracks  laid  along  and  upon  certain  public  avenues, 

streets  and  alleys,  in  the  city  of ;  that  the  usual 

course  of  operation  of  the  said  cars  within  the  city  of 

by  said  defendant  was  to  run  them  into  the  city  of 

in  a  northerly  direction,  over  and  along  the  east 

track  on street ;  thence  over  the  east  track  upon 

a  bridge  spanning  river,  which  bridge  is  com- 
monly called street  bridge ;  then  along  the  east 

track  on avenue  to street,  then  upon  the 

track  on street,  which  is  the  northern  terminus 

of  said  railroad;  then  the  said  defendant  would  back  its  cars 
out  from  the  street  track  to  the  west  track  on 


PERSONAL   INJURIES  921 

avenue  so  that  the  car  would  face  the  south ;  then 

it  would  run  its  cars  in  a  southerly  direction  along  the  west 

track  on avenue  as  aforesaid ;  then  over 

street  bridge  on  the  west  track ;  then  along  the  west  track  on 

street ;  that  a  short  time  prior  to  the  grievance 

mentioned  it  had  been  found  necessary  to  discontinue  the  run- 
ning and  operating  of  said  cars  over street  bridge ; 

and  that  it  then  and  there  became  necessary  for  the  said 
defendant  to  adopt  another  plan  for  the  operating  and  running 
of  its  cars  within  the  said  city  of 

And  it  then  and  there  became  and  was  the  duty  of  the  said 
defendant  in  operating  its  said  railroad  and  running  its  said 

cars  over and  other  streets  in  the  said  city  of 

,  to  adopt  a  plan  of  operating  and  running  said  cars 

which  would  be  considered  good  railroading  under  all  the  cir- 
cumstances, and  to  adopt  a  plan  which  would  reasonably  pro- 
tect plaintiff's  intestate  and  other  persons  laAvfully  using 
street  aforesaid,  so  that  the  safety  of  their  per- 
sons while  so  engaged  would  not  be  jeopardized  by  the  pres- 
ence of  defendant's  cars  upon  said  street. 

Yet,  the  said  defendant,  well  knowing  the  premises  and  well 

knowing  that street  is  one  of  the  principal  streets 

of  the  city  of ,  a  city  of  upwards  of 

thousand  inhabitants,  and  as  such  traveled  by  a  large  number 
of  persons,  disregarding  its  said  duty  did  not  adopt  a  plan  of 
operating  and  running  said  cars  which  would  be  good  rail- 
roading under  all  the  circumstances,  and  did  not  adopt  a  plan 
of  operation  which  would  reasonably  protect  plaintiff's  intes- 
tate and  other  persons  lawfully  using  said street. 

But  on  the  contrary,  the  said  defendant  negligently  and  care- 
lessly adopted  a  plan  of  operating  and  running  its  said  cars 
which  was  highly  dangerous  to  plaintiff's  intestate  and  other 

persons  lawfully  traveling  upon  said street, 

and  negligently  and  carelessly  directed  and  permitted  its 
employees  to  run  its  said  cars  northward  bound  from  the  east 

track  on street  onto  the  track  on  

street  bound  westward,  thence  to  the  track  on 

place  bound  southward,  thence  to  the  track  on street 

bound  eastward,  thence  to  the  west  track  on 

street  headed  southward,  then  to  back  its  said  cars,  without 
fenders  or  headlights  on  the  rear  or  any  other  distinctive  warn- 
ing or  signal  which  would  convey  the  idea  to  persons  unaccus- 
tomed to  railroading  that  said  car  was  about  to  run  backward 

along  the  west  track  of  said street,  a  track 

heretofore  invariably  used  for  cars  running  in  a  southerly 
direction,  in  a  northerly  direction  to  its  waiting  room  located 

on  the  west  side  of street,  a  long  distance  from 

street,  to  wit, feet,  all  of  which  dis- 
tance from street  to street  being  in 

the  busiest  business  section  of  said  city  of 


922  ANNOTATED   FORMS   OF   PLEADING   AND    PRACTICE 

2.  And  it  then  and  there  became  and  was  the  duty  of  de- 
fendant, when  backing  its  said  cars  on street  as  afore- 
said, to  operate  said  cars  at  a  slow  rate  of  speed  and  to  have 
them  under  perfect  control  to  avoid  injuring  anyone  tiien 
using  the  street ;  and  especially  it  was  the  duty  of  the  defend- 
ant, while  backing  its  said  cars  over  the  intersection  of 

and streets,  which  intersection  is  just  north  of 

the  point  where  the  said  cars  started  to  back,  and  which  inter- 
section is  designed  especially  for  the  crossing  of  the  streets  by 
pedestrians  and  others  and  is  located  in  the  business  district 

of  said  city  of and  traveled  l)y  many  persons,  to 

run  said  cars  at  a  slow  rate  of  speed  and  to  have  said  cars 
under  perfect  control  and  to  have  a  man  on  the  rear  of  said 
cars  to  keep  a  constant  lookout  to  avoid  injuring  the  plaintiff's 
intestate  and  others  then  lawfully  using  tlie  street  or  crossing. 

Yet,  the  said  defendant,  well  knowing  the  premises  and 
well  knowing  that  its  said  cars,  being  headed  in  a  southerly 
direction  and  being  upon  the  west  track,  a  track  up  to  a  short 
time  prior  to  the  grievance  hereinafter  mentioned  invariably 
used  for  the  south  bound  cars,  and  having  no  fenders  or  head- 
light on  the  rear  of  said  cars,  would  give  the  plaintiff's  inte- 
state and  others  lawfully  using  said  street  the  impression  that 
said  car  was  bound  southward,  disregarding  its  said  duty  did 
not  operate  and  run  its  said  car  under  perfect  control  and 
did  not  have  a  man  on  the  rear  of  said  car  to  keep  a  constant 
lookout  to  avoid  injuring  those  persons  then  and  there  using 
said  street  or  crossing.  I>ut  on  the  contrary,  the  said  defendant 
negligently  and  carelessly,  in  the  evening  of  said  day  and  after 
darkness  had  fallen,  mismanaged  one  of  its  said  cars  at  the 
point  aforesaid,  and  then  and  there  suddenly  backed  its  said 
car  on  the  west  track  on street  across  the  inter- 
section of  said  and   streets,  without 

having  its  said  car  under  perfect  control  and  without  having  a 
man  on  the  rear  of  said  car  to  keep  a  constant  lookout  to  avoid 
injuring  those  persons  then  and  there  lawfully  traveling  on 
said  street  or  crossing. 

3.  And  it  then  and  there  became  and  was  the  duty  of  the 

defendant  before  backing  its  car  on street  in  the 

night  time  to  give  notice  to  those  persons  then  and  there  on  the 
street  or  crossing,  of  its  intention  so  to  do,  by  proper  signals 
of  warning,  and  by  proper  lights  on  the  rear  of  said  car,  and 
while  backing  its  said  car  on  said  street  to  give  notice  of  the 
approach  of  said  car  to  those  persons  then  and  there  using 
said  street  or  crossing  by  the  ringing  of  a  gong  or  other  proper 
signal  or  signals,  and  by  having  such  light  or  lights  on  the 
rear  of  said  car  as  would  indicate  to  the  plaintiff's  intestate  and 
others  then  and  there  using  said  street  or  crossing  that  said 
car  was  northward  bound,  and  to  have  said  car  under  control 


PERSONAL   INJURIES  923 

and  to  have  a  man  on  the  rear  platform  of  said  car  to  keep  a 
constant  lookout  to  avoid  injuring  the  plaintiff's  intestate  and 
others  then  and  there  using  said  street  or  crossing. 

Yet,  the  said  defendant,  well  knowing  the  premises  and  well 
knowing  that  its  said  car,  being  headed  in  a  southerly  direction 
and  being  upon  the  west  track,  a  track  up  to  a  short  time  prior 
to  the  grievance  hereinafter  mentioned  invariably  used  for  the 
south  bound  cars,  and  having  no  fenders  or  headlights  on  the 
rear  of  said  car,  Avould  give  the  plaintiff's  intestate  and  others 
lawfully  using  said  street  the  impression  that  said  car  was 
bound  southward,  disregarding  its  said  duty  did  not  before 

backing  its  said  car  on street  in  the  night  time 

on  the  date  aforesaid,  give  notice  to  the  plaintiff's  intestate  and 
others  then  and  there  on  said  street  or  crossing  of  its  intention 
so  to  back  its  said  car  by  giving  proper  signals  of  warning  and 
by  having  proper  lights  on  the  rear  of  said  car  and  did  not, 
while  backing  its  said  car  on  said  street,  give  notice  of  the 
approach  of  said  car  to  the  plaintiff's  intestate  and  others  then 
using  said  street,  by  the  ringing  of  a  gong  or  other  proper  sig- 
nal, and  by  having  such  light  or  lights  in  the  rear  of  said  car 
as  would  indicate  to  them  that  said  car  was  northward  bound, 
and  did  not  have  said  car  under  perfect  control,  and  did  not 
have  a  man  on  the  rear  platform  of  said  car  to  keep  a  con- 
stant lookout  to  avoid  injuring  the  plaintiff's  intestate  and 
others  then  and  there  using  said  street  or  crossing.  But  on  the 
contrary  thereof,  on  the  said  day  and  after  darkness  had  fallen, 

suddenly  started  to  back  its  said  car  on   street 

without  giving  notice  to  plaintiff's  intestate  and  those  persons 
then  and  there  using  the  street  or  crossing  of  its  intention  so 
to  do  by  proper  signals  of  warning  and  by  proper  lights  on  the 
rear  of  said  car,  and  then  and  there  negligently  and  carelessly 
mismanaged  one  of  said  cars  at  the  point  aforesaid,  and  then 

and  there  backed  its  said  car  on  the  west  track  on 

street  across  the  intersection  of  said and 

streets,  without  giving  notice  of  the  approach  of  said  car,  by 
the  ringing  of  a  gong  or  other  proper  signal,  and  without  hav- 
ing such  light  or  lights  on  the  rear  of  its  said  car  as  would 
indicate  to  the  plaintiff's  intestate  and  others  then  and  there 
using  said  street  or  crossing  that  said  car  was  northward  bound, 
and  without  having  its  said  car  under  perfect  control,  and  with- 
out having  a  man  on  the  rear  of  said  car  to  keep  a  constant 
lookout  to  avoid  injuring  the  plaintiff's  intestate  and  others 
then  and  there  using  said  street  or  crossing. 

And  by  reason  of  the  negligent  plan  of  operation  of  said 

cars  adopted  by  defendant  as  aforesaid,  on,  to  wit,  the 

day  of ,  19 .  . ,  in  the  evening  of  said  day  and  after 

darkness  had  fallen,  at  the  point  where  said 

street  intersects  with  said street,  while  plaintiff's 

intestate  was  crossing .  street  in  a  northerly  direc- 
tion, and  while  said  intestate  was  in  the  lawful  use  of  said 


924  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

street  and  crossing,  and  in  the  exercise  of  due  care  and  cau- 
tion, and  without  fault  or  negligence  on  the  part  of  him,  the 
said  intestate,  one  of  the  cars  of  the  said  defendant,  which  had 

just  rounded  the  curve  from street  onto  the  west  track 

on street,  and  which  car  gave  every  appearance 

of  being  southward  bound,  and  which  car  then  and  there  had  no 
one  on  the  rear  end  thereof  to  keep  a  constant  lookout  to  avoid 
injuring  those  who  were  in  the  lawful  use  of  said  street,  sud- 
denly backed  without  giving  any  warning  whatever  and  with- 
out having  such  light  or  lights  on  the  rear  of  said  car  as  would 
indicate  to  those  persons  who  wore  then  and  there  on  the  street 
that  said  car  was  northward  bound,  and  struck  intestate  of 
plaintiff,  while  he  was  crossing street  as  afore- 
said, knocking  him  down  and  running  over  him ;  whereby  he, 
the  plaintiff's  intestate,  was  then  and  there  crushed  and  killed. 

And  plaintiff  avers  that  the  death  of  her  said  intestate  was 
caused  by  the  negligence  and  careless  mismanagement  of  the 
said  car  and  the  failure  of  the  defendant  to  adopt  a  proper 
plan  of  operating  and  running  its  said  cars  upon  the  tracks 

along street  aforesaid ;  and  that  if  death  had  not 

ensued  the  plaintiff's  intestate  would  have  been  entitled  to 
maintain  an  action  against  and  recover  damages  from  defend- 
ant on  account  thereof. 

And  plaintiff  avers  that  on,  to  wit, ,  19.  ., 

she  was  duly  appointed  by  the  probate  court  for  the  county  of 

,  state  of  Michigan,  administratrix  of  the  estate 

of  said ,  deceased,  and  afterwards  duly  qualified 

as  such,  and  the  plaintiff  brings  here  into  court  her  letters 

testamentary  dated  the day  of ,  19.., 

whereby  it  fully  appears  that  she  has  been  empowered  to 
administer  the  estate  of  said  deceased. 

And  plaintiff  further  avers  that  the  following  are  persons 
entitled  by  law  to  the  personal  property  of  said  deceased,  under 
the  statute  of  Michigan  governing  the  distribution  of  personal 

property  of  plaintiff's  intestate,  viz :    ,  who 

is  the  widow  of  said  deceased. 

And  plaintiff  further  avers  that  the  said  widow  was  wholly 
dependent  upon  said  deceased  for  her  support  and  mainte- 
nance; that  he  was  accustomed  to  earn  large  wages,  to  wit, 

dollars  per  month  in  his  usual  avocation  as  a 

,  out  of  which  he  supported  and  maintained 

said  widow;  that  by  his  death  she  has  been  deprived  of  the 
means  of  support  and  suffered  pecuniary  injury,  and  plaintiff 
says  that  by  virtue  of  the  statute  in  such  case  made  and 
provided,  being  section  (10,427)  of  the  Compiled  Laws  of  1897, 
the  defendant  has  become  liable  to  pay  to  the  plaintiff  the 
pecuniary  damage  suffered  as  aforesaid.  All  to  the  damage, 
etc. 


PERSONAL  INJURIES  925 

1549  Fencing  right  of  way,  action 

A  city  or  village  has  power  to  require  railroad  companies  to 
fence  their  right  of  way  within  the  limits  of  the  municipality, 
and  a  railroad  company  may  become  liable  for  a  personal  injurj' 
which  has  been  caused  by  a  violation  of  an  ordinance  that 
requires  the  fencing  of  the  right  of  way  within  the  munici- 
pality.169  A  child  of  tender  years  who  enters  upon  the  unfenced  ^ 
right  of  way  of  a  railroad  company  and  is  injured  cannot  base 
his  action  for  the  injury  on  the  Illiuois  statute  relating  to  fenc- 
ing and  operating  of  railroads.^^*^  But  in  Michigan  the  action 
is  mamtainable  under  a  similar  but  broader  statute.^ '^i 

1550  Fire  communicated  by  locomotive  engine,  Narr.  (111.) 

For  that  whereas  the  decedent  on  and  before,  to  wit,  the 

day  of ,  19. .,  and  during  the  lifetime  of 

said  decedent  was  the  owner  of  and  together  with  her  hus- 
band and  their  children  was  occupying  and  residing  upon  a 

certain  close  situated  in  said  county  of and  on 

which  said  close  was  located  a  certain  dwelling  house  with  the 
appurtenances  thereto  belonging ;  and  the  defendant  was  then 
possessed  of,  using  and  operating  a  certain  railroad,  extending 

from city  in  the  state  of  Illinois  to  and  across 

said  county  of to  the  city  of  .•••;••' 

and  was  also  possessed  of,  using  and  controlling  a  certain  right 
of  way  to  the  said  railroad  there  appertaining,  extending  along 
and  adjoining  said  close  of  the  decedent  and  which  said  right 
of  way  consisted  of  a  strip  of  land  of  the  width  of,  to  wit,  a 

feet  extending  a  distance  of,  to  wit, feet  on 

each  side  of  the  central  line  of  said  railroad. 

And  although  it  was  before  that  time  and  then  the  duty  of 
the  defendant  to  keep  the  said  right  of  way  free  from  all  dead 
grass,  dry  weeds  and  other  dangerous  combustible  materials  so 
that  fire  from  the  locomotive  engines  and  trains  of  the  defend- 
ant on  said  railroad  would  not  by  means  of  such  dead  grass, 
dry  weeds  and  other  dangerous  and  combustible  materials 
spread  and  be  communicated  therefrom  to  the  said  residence, 
property  and  close  of  the  said  decedent;  yet  the  defendant 
not  regarding  its  duty  or  using  due  care  in  that  behalf  did 
not  nor  would  keep  said  right  of  way  free  from  dead  grass, 
dry  weeds  and  other  dangerous  combustible  materials  as  afore- 
said, but  on  the  contrary  thereof  before  that  time  negligently 
suffered  large  quantities  of  such  dead  grass,  dry  weeds  and 

169  Heitinff  v.  Chicago,  Rock  Island  i^o  Bischof    v.    Illinois    Southern 

&  Pacific  Ey.  Co,  252  111.  471;  Par.      Ey.  Co.,  232  111.  446  (1908) 

•>7    sec    1.  art.  5,  Cities  and  Villages  I'l  Keyser    v.    Chicago    &    Grand 

_.,  sec.  i,  art.  o,  v.  K  ^^^^^  ^^   ^^^  ^^  ^.^^^   ^90  (1887). 


926  ANNOTATED    FORMS   OF    PLEADING   AND    PRACTICE 

other  dangerous  combustible  materials  to  accumulate  and  then 
negligently  suffered  the  same  to  remain  upon  said  right  of  way. 

2.  And  although  it  was  also  before  that  time  and  then  the 
duty  of  the  defendant  to  provide  its  locomotive  engines  used 
and  operated  upon  and  along  said  railroad  with  the  proper 
and  most  approved  machinery  and  appliances  to  prevent  the 
escape  of  fire  from  said  loconiotive  engines  and  to  keep  in  con- 
stant use  and  proper  repair  such  machinery  and  appliances; 
and  although  it  was  also  before  that  time  and  then  the  duty 
of  the  defendant  to  so  operate,  run  and  manage  said  locomo- 
tive engines  upon  and  along  said  railroad  as  to  prevent  the 
escape  of  fire  from  said  locomotive  engines  to  the  injury  of 
property  along  and  near  said  railroad;  yet,  the  defendant  not 
regarding  its  duty  or  using  due  care  in  that  behalf,  did  not 
nor  would  keep  its  said  locomotive  engines  on  said  railroad 
eciuipped  with  the  proper  and  most  approved  machinery  and 
appliances  to  prevent  the  escape  of  fire  from  said  locomotive  en- 
gines, and  did  not  nor  would  so  operate,  run  and  manage  thf 
same  on  said  railroad  as  to  prevent  the  escape  of  fire  from 
said  locomotive  engines  to  the  injury  of  property  along  and 
near  said  railroad.  And  while  a  certain  locomotive  engine  of 
the  defendant  and  under  its  management  and  control  was 
then  and  there  passing  upon  the  said  railroad,  along  the  said 
close,  divers  sparks  and  brands  of  fire  then  and  there  escaped 
and  were  thrown  from  the  same  locomotive  engine  by  and 
through  the  mere  neglect  and  failure  of  the  defendant  to  pro- 
vide said  locomotive  engine  with  the  proper  and  most  approved 
machinery  and  appliances  to  prevent  the  escape  of  fire  from 
said  locomotive  engine  and  by  and  through  the  mere  neglect 
and  failure  of  the  defendant  to  so  operate,  run  and  manage 
said  locomotive  engine  on  said  railroad  there  as  to  prevent  the 
escape  of  fire  from  said  locomotive  engine,  and  set  fire  to  cer- 
tain combustible  materials  then  on  said  close  and  right  of  way, 
and  which  said  fire  set  as  aforesaid,  spread  to  upon  and  over 
said  close  of  decedent. 

By  means  whereof  fire  then  and  there  emitted  and  thrown 
from  a  certain  locomotive  engine  and  train  of  defendant  on 
said  railroad  to  and  upon  said  right  of  way  and  dry  grass  and 
weeds  and  other  dangerous  combustible  materials  there,  then 
and  there  ignited  and  set  on  fire  said  dry  grass  and  weeds  and 
other  dangerous  combustible  materials  and  thence  spread  and 
was  communicated  to  and  spread  upon  said  close  of  decedent. 
And  while  the  decedent  was  then  and  there  with  all  due  care 
and  caution  for  her  own  personal  safety  lawfully  endeavoring 
to  suppress  and  extinguish  said  fire  on  said  close  communicated 
as  aforesaid  and  which  said  fire  the  plaintiff  avers  was  travel- 
ing, progressing  and  extending  toward  and  threatening  the 
destruction  of  said  dwelling  house  with  the  appurtenances 
thereto  belonging  on  said  close,  the  clothing  of  decedent  was 


PERSONAL  INJURIES  927 

then  and  there  unavoidably  ignited  and  set  on  fire  by  flames, 
sparks  and  brands  of  fire  blown  and  thrown  upon  and  com- 
municated to  the  clothing  of  decedent  from  said  fire  on  said 
close;  and  thereby,  the  clothing  of  decedent  was,  then  and 
there,  while  she,  the  decedent,  was  in  the  exercise  of  all  due 
care  and  caution  for  her  own  personal  safety,  burned  and 
consumed  and  the   decedent   burned,   maimed,   wounded  and 

mortally  injured ;  and  in  consequence  whereof  said 

died  on  the day  of  .^. 19. ..     (Add  last 

two  paragraphs  of  Section  1495) 

1551  Footboard  on  engine  pilot  defective,  Narr.  (Miss.) 

That  the  defendant,  the  said  ,  is  a  railroad 

corporation  duly  chartered  under  the  laws  of  the  state  of  Mis- 
sissippi, and  operating  a  line  of  railroad  traversing  said  state 

from  east  to  west  and  passing  through  the 

district  of county  in  the  said  state,  and  having 

an  agent  residing  in  the of in  said 

district  of county,  upon  whom 

service  of  process  can  be  made. 

That  plaintiff  was,  on  the day  of ,19.  ., 

and  for  a  long  time  prior  thereto,  employed  in  the  service  of 
the  defendant  as  a  brakeman  and  on  said  date  he  was  actively 
engaged  in  the  discharge  of  his  duties  as  front  brakeman  on 

one  of  the  defendant's  trains,  to  wit,  freight  train  number 

which  was  being  pulled  by  engine  number 

in  charge  of  engineer ,  said  train  being  in  charge 

of  conductor  ,  which  said  freight  train  had 

left  the  .  .'. ,  a  station  on  defendant's  road,  on  the 

morning  of  said day  of ,  19 .  . ,  its  desti- 
nation being  the  city  of ,  another  station  on  said 

defendant's  road,  said  train  being  a  local  freight  train  and  en- 
gaged in  interstate  commerce. 

That  when  said  train  number arrived  at 

,  a  station  on  defendant's  road  about miles 

east  of  said of ,  the  conductor  in 

charge  of  said  train,  having  received  orders  from  the  train-dis- 
patcher to  clear  at  said  station  of for  passenger 

train  number   of  defendant,  which  was  east 

bound,  and  then  due,  gave  orders  to  the  crew  of  said  train 
number to  put  said  train  upon  a  siding. 

That  as  front  brakeman  on  said  train,  it  was  the  duty  of 
plaintiff  to  throw  open  the  switches  in  entering  and  leaving 
the  siding,  and  that  in  the  discharge  of  said  duty  it  was 
plaintiff's  custom  to  throw  open  the  first  switch  in  order  that 
the  train  might  enter  the  siding  and  then  to  step  upon  the 
pilot  of  the  engine  and  ride  to  the  end  of  the  siding  where  he 
would  throw  open  the  switch  at  the  other  end  of  the  siding  in 
order  that  the  train  could  pass  again  to  the  main  line ;  that  in 
riding  on  the  pilot  he  would  stand  upon  the  metal  footboards 


928  ANNOTATED   FORMS  OF   PLEADING  AND   PRACTICE 

which  are  furnished  for  that  purpose,  and  which,  when  properly 
constructed,  are  fastened  on  both  sides  of  the  pilot  with  bolt 
and  nuts,  plaintiff  at  the  same  time  holding  with  his  hands 
the  iron  hand-hold  which  was  also  provided  for  that  purpose, 
that  being  the  usual  and  customary  way  for  the  front  brake- 
man  to  ride  from  front  switch  to  the  end  switch  while  engaged 
in  assisting  in  so  switching  his  train,  and  being  the  way  in  gen- 
eral use  among  all  railroads,  and  especially  being  the  way  in 
general  use  on  defendant's  said  road  by  defendant's  servants 
on  said  date. 

That  on  said  date  plaintiff  was  ordered  by  the  conductor  of 

said  train  number to  open  the  switch  so  that  said 

train  might  be  switched  upon  the   siding  in   order  to  clear 

the  main  line  for  the  said  passenger  train  number ,  and 

plaintiff  thereupon  proceeding  to  obey  said  order  in  the  usual 
and  customary  way,  opened  the  first  switch  and  was  then  pro- 
ceeding to  take  his  station  upon  the  metal  foot-boards  on 
each  side  of  the  pilot,  in  order  that  he  might  be  transported 
to  the  other  end  of  the  siding,  where  he  would  be  ready  to 
open  the  end  switch,  so  that  the  said  train  could  again  pass 
upon  the  main   line   and  proceed   upon   its   journey   towards 

the  station  of ,  and  plaintiff  had  placed  his  left 

foot  on  the  right  foot-board  of  the  pilot,  and  stepped  with 
his  right  foot  on  the  left  foot-board  of  the  pilot,  holding  on 
with  his  hands  to  the  iron  hand-hold,  provided  for  such  pur- 
pose, and  just  as  he  stepped  with  his  right  foot  on  the  left 
metal  foot-board  on  the  pilot,  and  while  he  was  discharging 
his  duties  in  the  usual  and  customary  and  safe  way,  and  with 
all  due  and  proper  regard  for  his  own  safety  and  in  the  exer- 
cise of  reasonable  care  on  his  part,  the  left  metal  foot-board 
tilted,  gave  Avay,  and  broke  loose  from  its  fastenings,  which 
were  insufficient  and  insecure,  and  caused  plaintiff  to  lose  his 
foot-hold,  in  consequence  whereof  he  was  violently  thrown 
from  the  pilot,  in  front  of  the  moving  engine  and  said  engine 
and  a  number  of  cars  attached  thereto  ran  over  plaintiff's  left 
foot  and  leg,  horribly  bruising,  scratching  and  maiming  it  so 
that  it  became  necessary  to  amputate  the  said  left  leg  between 
the  foot  and  the  knee. 

Plaintiff  says  that  the  cause  of  his  said  fall  from  the  pilot 
of  said  engine,  and  the  consequent  injuries  suffered  by  him, 
was  the  defective  and  insecure  condition  of  the  metal  foot- 
board on  the  left  side  of  the  pilot  of  said  engine,  on  which 
plaintiff  had  just  stepped  with  his  right  foot,  in  the  discharge 
of  his  duties  as  aforesaid,  which  said  foot-board  defendant  had 
negligently  allowed  to  get  out  of  repair  and  become  defective 
and  unsafe. 

Plaintiff  says  that  it  was  the  duty  of  the  defendant  under 
the  law,  to  furnish  him  reasonably  safe  machinery  and  appli- 
ances with  which  to  work,  and  a  reasonably  safe  place  to  work ; 
but  plaintiff  says  that  the  defendant  disregarded  its  duty  in 


PERSONAL  INJURIES  929 

that  respect,  and  carelessly  allowed  said  foot-board  to  become 
unsafe  and  defective,  in  that  it  was  not  provided  with  a  suffi- 
cient number  of  bolts,  and  the  bolts  which  were  on  the  foot- 
board were  not  fastened  with  nuts,  as  they  should  have  been, 
and  was  otherwise  in  a  bad  state  of  repair ;  and  plaintiff  says 
that  said  foot-board  was  not  strong  enough  to  hold  up  any 
weight  whatever,  and  was  wholly  unsuited  for  the  purpose 
for  which  it  was  intended,  all  of  which  defendant  well  knew, 
or  by  the  exercise  of  reasonable  care  and  diligence  on  its  part 
it  ought  to  have  known. 

Plaintiff  says  that  the  defective  and  unsafe  condition  of  said 
foot-board  was  wholly  unknown  to  him  at  the  time  he  received 
said  injuries. 

Plaintiff  says  that  he  is years  old,  and  that  at 

the  time  he  received  the  said  injuries  he  was  in  robust  health, 
and  sound  in  body,  and  that  he  was  earning  as  brakeman  the 
sum  of dollars  per  day. 

Plaintiff  says  that  on  account  of  said  injuries  he  has  suffered 
great  physical  pain  and  mental  anguish  and  has  been  incapaci- 
tated for  life  to  perform  manual  labor,  upon  which  he  was 
dependent  for  a  livelihood;  that  he  has  lost  much  time,  and 
has  been  crippled  for  life  and  permanently  disabled,  and  his 
capacity  to  earn  a  livelihood  practically  destroyed.  Wherefore, 
etc. 

1552  Foundation  waJl,  collapse,  Narr.  (111.) 

For  that  whereas,  heretofore,  on,  to  wit,  the day 

of ,  19 .  . ,  at,  to  wit,  in  the  county  of , 

state  aforesaid,  said  defendant  was  the  owner  of  and  had  the 

control  of  certain  lots  in addition  to  the  city  of 

,  county  and  state  aforesaid ;  that  the  defendant 

desired  to  construct  a  business  building  of  brick  with  stone 
foundation  upon  said  lots  and  so  undertook  to  construct  and 
did  construct  or  cause  to  be  constructed  under  his  own  super- 
vision and  direction  a  stone  foundation  wall  under  said  pro- 
posed brick  business  building,  and  in  the  construction  of  said 
foundation  used  inferior  rock  and  mortar,  which  was  burnt 
and  wholly  insufficient  and  unfit  for  such  use. 

And  it  then  and  there  became  and  was  the  duty  of  the  said 
defendant  to  have  said  stone  foundation  wall  so  built  that 
the  same  would  have  been  in  reasonably  good  and  safe  condi- 
tion upon  which  to  erect  the  brick  building  as  aforesaid.  Yet, 
the  defendant,  not  regarding  his  duty  in  that  behalf  and  well 
knowing  the  bad  and  unsafe  condition  of  said  foundation  stone 
wall,  on,  to  wit,  the  day  and  year  aforesaid,  then  and  there 
Avrongfully  and  negligently  suffered  and  permitted  the  plain- 
tiff to  be  and  remain  in  ignorance  of  such  bad  and  unsafe 
condition  of  said  foundation  stone  wall. 

2.     And  the  plaintiff  further  avers  that  the  defendant  knew  or 


930  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

by  the  exercise  of  reasonable  care  could  have  known  that  said 
foundation  constructed  as  the  same  was  constructed  out  of 
said  inferior  materials  aforesaid  would  not  support  the  brick 
walls  to  be  placed  upon  the  same  in  the  construction  of  the 
said  building,  and  the  defendant  with  full  knowledge  of  the 
said  weak  and  inferior  stone  foundation  walls,  without  giving 
the  plaintiff  any  notice  or  warning  of  their  said   condition 

induced  the  plaintiff  and  his  partner,  one , 

who   were    then    brick-laying    contractors,    and    the    plaintiff 

and  said did  enter  into  a  contract  with  him, 

the  defendant,  for  the  construction  of  said  brick  walls,  upon 
said  stone  wall  or  foundation,  not  knowing  of  the  poor  con- 
struction and  condition  of  the  said  stone  foundation  and  not 
knowing  that  the  said  stone  foundation  was  insuflficient  to 
support  the  brick  walls  which  the  defendant  contracted  with 

the  plaintiff  and  said   to  place  upon  the  said 

foundation,  and  without  any  reasonable  opportunity  of 
acquainting  the  said  plaintiff  of  the  condition  of  said  stone 
foundation  wall. 

And  the  plaintiff  while  engaged  in  laying  brick  upon  said 
stone  wall  in  pursuance  of  said  contract  and  with  no  notice 
of  the  inferior  construction  and  weak  condition  of  the  said 
stone  foundation  wall,  and  while  in  the  exercise  of  due  care 
and  caution  for  his  own  safety,  by  reason  of  the  weak,  rotten 
and  inferior  condition  of  said  rock  foundation  wall,  the  same 
gave  way,  precipitating  the  plaintiff  with  great  force  to  the 
ground  and  he  was  then  and  there  hurt,  bruised  and  wounded 
and  he,  the  plaintiff,  was  internally  injured  and  he  then  and 
there  became  and  was  sick,  sore,  lame  and  disordered,  and  so 
remained  for  a  long  time,  to  wit,  from  thence  hitherto,  during 
all  of  which  time  plaintiff  suffered  great  pain  and  was  hindered 
from  performing  his  ordinary  affairs  and  business  and  in  con- 
sequence thereof  was  obliged  to  and  did  then  and  there  spend 

divers  sums  of  money  amounting  to  the  sum  of,  to  wit, 

dollars  in  endeavoring  to  be  cured  of  his  aforesaid 

injuries  occasioned  as  aforesaid.    To  the  damage,  etc. 

1553  Frightening  horses  or  mules,  Narr.  (111.) 

For  that  whereas,  the  defendant,  on  the day  of 

,  19..,  was  then  and  there  driving  a  certain 

automobile,  said  certain  automobile  being  then  and  there 
propelled  by  mechanical  power,  upon  and  along  a  certain  high- 
way in  the  state  of  Illinois,  which  said  highway  was  not  then 
and  there  within  the  limits  of  any  incorporated  city  or  village, 
and  which  said  highway  extended  in  a  northerly  and  south- 
erly direction  on  the  line  between  the  aforesaid  county  of  .... 

and  the  county  of in  said  state  of 

Illinois;  that  said  defendant  was  then  and  there  driving  the 
said  automobile  upon  the  said  highway,  in  a  northerly  direc- 


PERSONAL  INJURIES 


931 


tion,  at  a  point  about miles  north  of  the  village  of 

in  said  county ;  that  on  the  day 

aid  "date  last  aforesaid,  the  plaintiff  was  traveling  upon  the 
aforesaid  highway,  in  a  southerly  direction,  in  a  certain 
vehicle,  which  vehicle  was  then  and  there  hauled  and  pro- 
pelled by  two  certain  mules,  which  said  mules  were  then  and 
there  attached  to  said  vehicle,  and  were  being  driven  by  ... . 

*  *  And  while  the  plaintiff,  with  all  due  care  and  diligence,  was 
so  traveling  upon  said  highway,  the  said  defendant  so  driv- 
ing and  running  the  aforesaid  automobile,  did  meet  and  come 
up  to,  in  said  highway,  the  team  of  mules  and  vehicle,  in  which 
the  plaintiff  was  then  so  traveling,  and  which  the  atoresaid 
with  all  due  care  and  diligence,  was  then  and 
there  driVing.  Yet,  the  defendant,  not  regarding  his  duty  or 
using  due  care,  was  then  and  there,  with  great  negligence  and 
contrary  to  the  form  of  the  statute,  driving  and  running  said 
automobile  at  a  speed  greatly  in  excess  of  fifteen  miles  an 
hour-  by  means  of  which  negligence  and  disregard  o±  the 
statute  and  by  means  of  the  great  speed  of  such  automobile  as 
aforesaid,  did  then  and  there  greatly  frighten  the  aforesaid 

team  of  mules,  so  driven  by  the  said so  that  the 

said  mules,  by  means  aforesaid,  became  unmanageable  and 
escaped  from  the  control  of  their  said  driver,  •.•••;••••  ^^^ 
did  then  and  there  so  twist  and  turn  the  said  vehicle  about 
that  the  plaintiff  was,  while  using  all  due  care  and  dihgence 
for  his  own  safety,  thrown  thence  to  the  ground  there,  with 
great  violence. 

2  And  for  that  while  th^  plaintiff,  with  all  due  care^  and 
diligence,  was  so  traveling  upon  said  highway,  the  said  defend- 
ant so  driving  the  aforesaid  automobile,  did  then  and  there 
apvroach  and  meet  and  pass,  in  said  highway,  the  two  certain 
mules,  and  the  certain  vehicle  in  which  the  plaintiff  was  then 

and  there  traveling,  and  which  the  said ••.•:•••  ^^^i^  ^^^ 

due  care  and  diligence  was  then  and  there  driving;  and  tor 
that  also  while  the  said  defendant  was  so  approaching  tlie 
vehicle  in  which  the  plaintiff  was  then  and  there  traveling  as 
aforesaid,  it  did  then  and  there  appear  to  the  said  defendant 
so   driving  the   automobile,   as  aforesaid,   that   the  aforesaid 

mules,  so  driven  by  the  said and  attached  to 

the  aforesaid  vehicle,  were  then  and  there  about  to  become 
frightened  by  the  approach  of  the  aforesaid  automobile,  and 
when  it  then  and  there  so  appeared  to  the  said  defendant, 
so  traveling  as  aforesaid,  that  the  aforesaid  mules  were  so 
about  to  become  frightened,  it  then  and  there  became  and 
was  the  duty  of  the  said  defendant,  as  was  then  and  there 
provided  by  law,  to  cause  the  aforesaid  automobile,  so  driven 
by  said  defendant,  to  come  to  a  full  stop,  until  the  aforesaid 
mules  had  passed  said  automobile ;  yet,  the  defendant,  although 
it  was  then  and  there  his  duty  to  cause  the  aforesaid  automo- 


932  ANNOTATED   FORMS   OF   PLEADING    AND    PRACTICE 

bile  to  come  to  a  full  stop,  and  although  it  then  and  there 
appeared  to  said  defendant  that  said  mules  were  about  to 
become  frightened  at  the  approach  of  the  aforesaid  automobile, 
did  then  and  there  negligently,  maliciously  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  fail  to 
cause  the  aforesaid  automobile  to  come  to  a  full  stop  until  the 
aforesaid  mules  had  passed ;  wherefore,  and  by  means  of  the 
aforesaid  negligence  of  the  defendant,  and  by  means  of  the 
failure  of  the  said  defendant  to  cause  the  said  automobile  to 
come  to  a  full  stop  until  such  mules  had  passed,  the  aforesaid 
mules  became  greatly  frightened  and  unmanageable  and  then 

and  there  escaped  from  the  control  of  their  driver, , 

who  was  then  and  there  using  all  due  care  and  diligence  to 
restrain  said  mules,  and  did  then  and  there  so  twist  about 
and  throw  said  vehicle,  in  which  the  plaintiff  was  then  and 
there  traveling,  that  the  plaintiff  was,  while  using  all  due  care 
and  diligence  for  his  own  safety,  thrown  thence  to  the  ground 
there  with  great  violence. 

3.  And  for  that  while  the  plaintiff,  with  all  due  care  and 
diligence,  was  so  traveling  upon  said  highway,  the  said  defend- 
ant, so  driving  the  aforesaid  automobile,  did  then  and  there 
approach  and  meet  and  pass,  in  said  highway,  the  two  cer- 
tain mules,  and  the  certain  wagon  in  which  the  plaintiff'  was 

then  and  there  traveling,  and  which  the  said  

was  then  and  there  driving;  and  while  the  plaintiff,  with  all 
due  care  and  diligence,  as  aforesaid,  was  then  and  there  so 
traveling  upon  said  highway,  in  the  said  wagon  drawn  by 
the  aforesaid  mules,  the  defendant  then  and  there  so  mali- 
ciously, carelessly  and  improperly  and  with  so  great  negligence, 
drove  and  managed  the  said  automobile,  that  by  and  through 
the  aforesaid  negligence  and  improper  conduct  of  the  defend- 
ant, the  aforesaid  mules  so  driven  as  aforesaid,  became  and 
were  greatly  frightened,  and  became  and  were  then  and  there 
unmanageable,  and  then  and  there  escaped  from  the  control 
of  their  said  driver,  who  was  then  and  there  using  all  due  care 
and  diligence  to  restrain  and  control  said  mules,  and  did  then 
and  there  so  twist  and  turn  and  throw  about  said  wagon  that 
by  means  thereof  the  plaintiff  was  violently  thrown  out  of 
said  wagon  upon  the  ground  there  with  great  violence. 

By  means  whereof,  then  and  there,  one  of  the  arms  of  the 
plaintiff'  was  broken,  and  one  of  his  legs  was  greatly  injured, 
and  the  bones,  muscles,  blood  vessels,  nerves  and  sinews  of  the 
right  leg,  arm  and  back  of  the  plaintiff'  were  fractured,  sprained 
and  lacerated,  and  he  was  otherwise  greatly  bruised,  hurt  and 
wounded;  and  thereby  the  plaintiff  was  obliged  to  and  did 
then  and  there  lay  out  divers  large  sums  of  money,  amounting 

to dollars,  in  and  about  endeavoring  to  be  cured 

of  the  said  injuries  so  received  as  aforesaid ;  and  the  plaintiff 
thereby  was  obliged  to  and  did  incur  liabilities  for  sundry 
and  divers  other  large  sums  of  money,  amounting  to 


PERSONAL  INJURIES  933 

dollars,  in  endeavoring  to  be  cured  of  the  said  injuries  so  re- 
ceived as  aforesaid;  and  also  by  means  of  the  premises  the 
plaintiff  then  and  there  became  and  was  sick,  lame  and  dis- 
ordered, and  so  remained  for  a  long  time,  to  wit,  from  thence 
hitherto ;  during  all  of  which  time  the  plaintiff  suffered  great 
pain  and  anguish  of  body  and  mind  of  a  permanent,  incurable 
and  continuing  nature,  and  was  hindered  and  prevented  from 
transacting  and  attending  to  his  business  and  affairs,  and  lost 
and  was  deprived  of  divers  great  gains  and  profits  which  he 
might  and  otherwise  would  have  made  and  acquired;  to  the 
damage,  etc.^^2 

1554  Frightening  horses,  noise  of  machinery,  Narr.  (Va.) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the day 

of ,  19,  .,  and  for  many  years  prior  thereto  there 

was  and  existed  a  certain  public  road  and  highway,  in  part 

in  the  county  of ,  Virginia,  in 

district,  in  said  county,  which  public  road  or  highway  was 

indifferently  called,  to  wit  " road,"  " 

turnpike ' '  and  " turnpike, ' '  and  which 

was  adjacent  to  the  lands  of  and  other 

owners,  in  said  county  of  ,  at  a  place  in  said 

county  between  the  city  of ,  and  the  line 

dividing  said  county  and   county,  in  said  state, 

the  said  road  extending,  generally  in  said   

county  in  an  easterly  and  westerly  direction,  and  was  on  the 
date  aforesaid,  and  for  many  years  prior  thereto  at  the  place 
hereinafter,  more  particularly  mentioned,  in  constant  and  daily 
use  by  the  public  generally  for  traveling  afoot  and  horseback 
and  in  vehicles  drawn  by  horses  of  ordinary  gentleness  and 
training,  and   other  modes  of  conveyance,   in   going  to   and 

from  the  populous  city  of and  elsewhere,  and  to 

and  from  other  places  in  said  county  of  and 

other  counties,  at,  near  and  beyond  the  place  hereinafter  par- 
ticularly mentioned,  at  which  place,  or  locality,  the  public  gen- 
erally, and  the  plaintiff's  intestate  in  particular,  in  traveling 
by  means  of  buggies,  carts  and  other  vehicles  drawn  by  horses 
of  ordinary  gentleness  and  training  along  and  upon  said  public 
road  and  highway,  had  the  right  to  the  use  thereof  for  the 
purposes  of  travel,  free  from  any  dangerous,  unusual  or  ex- 
traordinary obstructions,  appliances  or  objects,  and  especially 
free  from  any  dangerous,  unusual  or  extraordinary  noises 
therein  or  so  near  thereto  as  would  have  a  tendency  and  be 
reasonably  calculated  to  frighten  or  scare  such  horses  of 
ordinary  gentleness  and  training,  of  all  of  which  the  de- 
fendant' well  knew  or  by  the  exercise  of  ordinary  care  could 
and  would  have  known. 

172  Christy  v.   Elliott,  216  111.   31 
(1905). 


934  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

And  the  plaintiff  further  complains  and  avers  that,  on,  to 

wit,  the day  of ,  19  •  • ,  and  for  many  weeks 

prior  thereto  the  defendant,  its  agents  and  servants  wrong- 
fully, carelessly  and  negligently  located,  placed,  built,  con- 
structed and  maintained  upon  and  within,  or  partially  upon 
and  within,  or  very  near  and  adjacent  to  said  public  road  and 

highway  at  a  place  in  said county  about,  to  wit, 

one  and  miles  distant,  westerly  from  the  cor- 
porate lines  of  the  city  of  ,  and  about,  to  wit, 

of  a  mile  from  where  said  public  road  crosses 

the  dividing  line  between  said  counties  of and 

,  which  place  was,  and  is,  near  the  property 

called  the property,  and  where  traveling  over 

and  along  said  public  road  and  highway,  by  the  means  and 
in  the  manner  aforesaid,  by  the  general  public  was  daily,  con- 
stant and  frequent,  a  large  plant  and  structure  for  the  crush- 
ing of  rock,  which  plant  consisted,  in  part  of  a  large  steam 
boiler  and  engine,  rock  crushing  machinery,  crusher  bin  and 
elevators  for  transporting  crushed  rock  from  said  rock  crush- 
ing machine  to  the  crusher  bin,  and  generated,  produced, 
maintained  and  used  steam  by,  in  and  upon  said  boiler  and 
engine  to  which  engine  and  boiler  were  attached  large  w^heels, 
valves  and  appliances  and  connecting  belts,  and  which  said 
boiler  was  filled,  or  partially  filled  with  water  and  steam,  used 
in  the  operation  of  said  plant  which  created  unusual  and 
extraordinary  noises  and  sounds;  and  the  above  mentioned 
boiler  and  engine,  rock  crushing  machinery  and  equipment, 
and  appliances  were  so  located,  maintained,  situated  and 
placed  in,  upon  or  near  to  said  public  road  and  highway,  to 
wit,  along,  upon  and  immediately  adjacent  to  the  southern  side 
thereof  as  that  they  occupied  a  considerable  part  thereof,  and 
so  that  there  was  left  only  a  narrow  passage  way  for  travelers 
over  and  upon  said  public  road  and  highway,  and  so  that 
horses  of  ordinary  gentleness  and  training  being  driven  and 
drawing  vehicles  occupied  by  travelers  thereover  and  there- 
along  would  necessarily  come  in  close  proximity  to  said  steam 
boiler  and  engine,  rock  crushing  machinery  and  the  other 
appliances  and  equipments  above  mentioned.** 

And  the  said  location  of  said  steam  engine,  boiler,  rock 
crushing  machinery  and  equipment  and  appliances  aforesaid, 
so  in  and  upon  and  adjacent  to  said  public  road  and  highway, 
and  the  large  and  tall  boiler  and  engine,  and  high  rock  crush- 
ing machinery,  equipment  and  appliances  in  and  upon  and 
near  to  said  public  road  and  highway,  were  of  an  extraordi- 
nary and  unusual  appearance,  and  the  noises  and  sounds 
made  by  the  steam  and  water  in  said  boiler  and  the  operations 
and  workings  of  said  machinery  and  equipment  by  said  defend- 
ant were  so  unusual  and  extraordinary  as  that  they  natu- 
rally tended  and  were  well  and  reasonably  calculated  to  fright- 
en horses  of  ordinary  gentleness  and  training  in  use,  as  afore- 


PERSONAL   INJURIES  935 

said,  for  the  purposes  of  travel  along  said  public  road  and 
highway,  and  over  and  along  which  the  defendant,  its  officers, 
agents  and  servants  knew,  or  by  the  exercise  of  reasonable 
care  would  and  should  have  known  the  public  generally,  daily, 
constantly  and  frequently  passed  and  repassed,  in  vehicles 
drawn  by  horses  of  ordinary  and  reasonable  gentleness. 

And  the  said  defendant  carelessly  and  negligently  failed  and 
omitted  to  exercise  any  proper  or  reasonable  care  or  precau- 
tion to  w^arn  persons,  and  especially  the  said , 

who  were  so  traveling  over  said  public  road  and  highway  or  to 
guard  them  in  any  way  against  the  dangers  which  defendant 
knew,  or  by  the  exercise  of  ordinary  care  would  have  known, 
it  had  created  and  might  reasonably  expect  to  arise  and 
result  to  the  general  public  in  so  traveling,  and  to  the  said 
in  so  traveling,  by  reason  of  the  location,  con- 
ditions, appearances  and  noises,  as  aforesaid. 

And  the  plaintiff  avers  that  his  intestate,  the  said 

; ,  was  on,  to  wit,  the  day  and  date  last  aforesaid  travel- 
ing along,  over  and  upon  said  public  road  or  highway,  near 
the  place  where  the  defendant's  engine  and  boiler,  rock  crush- 
ing machinery  and  other  equipments  and  appliances  aforesaid 
were  located,  placed,  and  operated  by  said  defendant,  and  was 

coming  towards  the  city  of ,  and  carefully 

driving  a  horse  of  ordinary  gentleness  and  training,  hitched 
to  and  drawing  a  vehicle  or  conveyance  commonly  called  a 

cart,  occupied  by  him,  the  said   ;  and  said 

horse,  by  reason  of  the  defendant's  recklessness  and  careless- 
ness in  creating  and  maintaining  its  said  rock  crushing  ma- 
chinery and  appliances  in,  upon  and  near  to  said  public  road 
and  highway,  and  in  maintaining  and  operating  the  same  so 
that  they  presented  such  unusual  and  extraordinary  appear- 
ance as  naturally  tended  and  were  well  calculated  to  frighten 
horses  of  ordinary  gentleness  and  training,  and  in  working 
and  operating  said  plant  and  thereby  producing  unusual  and 
extraordinary  noises  and  sounds,  upon  and  near  to  said  pub- 
lic road  and  highway  as  would  naturally  tend  and  be  reason- 
ably calculated  to  frighten  horses  of  ordinary  gentleness  and 

training,  and  in  failing  to  warn  travelers,  and  said 

in  particular,  driving  such  horses,  or  horse,  of  ordinary  gentle- 
ness and  training,  or  to  guard  them,  or  him,  against  the  fright- 
ening, and  the  results  of  frightening  such  horses,  became  and 
was  frightened  and  scared  by  the  unusual  and  extraordinary 
appearances  and  character  of  said  rock  crushing  machinery, 
engine  and  boiler,  equipments  and  appliances  aforesaid,  and  by 
the  said  unusual  and  extraordinary  noises  and  sounds  produced 
thereby,  and  by  the  steam  and  water  in  said  boiler  and  engine, 
and  said  horse  by  reason  of  its  said  fright  reared  and  plunged 
and  became  so  unmanageable  as  that  the  plaintiff's  intestate, 

the  said ,  was  thrown  and  hurled  from  said 

cart  to  the  ground,  and  was  greatly  bruised  and  wounded  in 


936  ANNOTATED   FORMS   OF    PLEADING   AND    PRACTICE 

and  about  his  head  and  other  parts  of  his  body  and  was  there- 
by rendered  sick,  sore,  lame,  disordered,  and  sulfered  partial 
paralysis,  by  reason  of  which  said  injuries  so  inflicted,  he  after- 
wards, to  wit,  on  the day  of ,  19. .,  died. 

2.     (Consider  first  count  to  double  star  as  here  repeated  the 
same  as  if  set  out  in  words  and  figures.) 

And  the  said  defendant  maintained,  used  and  operated 
instrumentalities,  pipes  and  a  valve,  in  connection  with  its 
said  steam  boiler  and  engine,  and  which  valve  was  commonly 
called  a  safety  or  pop-valve,  which  operated  and  worked 
automatically,  so  that  the  steam  which  was  generated  and 
accumulated  in  and  upon  said  boiler  and  engine  from  time  to 
time,  and  which  the  defendant  knew,  or  by  the  exercise  of 
ordinary  care  would  have  known,  would  and  did  from  time  to 
time  accumulate  in  and  upon  said  boiler  and  engine,  would  be 
and  was  from  time  to  time  automatically  ejected,  emitted,  dis- 
charged, and  released  by  said  automatic  safety  or  pop-valve  in 
sudden  streams,  jets  and  clouds,  accompanied  by  a  sharp  report 
and  hissing,  whistling  and  penetrating  sounds;  and  the  defend- 
ant so  recklessly,  carelessly  and  negligently  placed,  located, 
maintained  and  operated  its  said  engine  and  boiler  and  so 
recklessly,  carelessly,  negligently  and  unnecessarily  placed, 
located,  maintained  and  operated  the  said  automatic  safety 
or  pop-valve  and  pipe  attachments  that  the  steam  which  said 
safety  or  pop-valve  from  time  to  time  ejected,  emitted,  dis- 
charged and  released  and  the  hot  mist  and  water  therefrom 
were  ejected,  emitted,  discharged  and  released  in  sudden 
streams  and  clouds  horizontally  or  laterally  across,  over, 
into  and  upon  said  public  road  or  highway  and  about,  to  wit, 
five  to  seven  feet  from  the  ground,  and  the  said  sudden  jet- 
tings  and  streams  of  steam  and  clouds  of  mist  produced  there- 
by, and  the  hissing,  whistling  and  penetrating  noises  and  sharp 
report  produced  by  the  operations  of  said  safety  or  pop-valve 
and  pipe  attachments  in  the  ejection  and  release  of  steam 
were  of  an  extraordinary,  unusual  and  frightening  apearance 
and  character,  and  such  as  naturally  tended  and  were  well 
and  reasonably  calculated  to  frighten,  terrify  and  cause  to 
become  uncontrollable  horses  of  ordinary  gentleness  and  train- 
ing, and  thereby  liable  to  cause  injury  and  death  to  the  pub- 
lic generally  in  traveling  upon  and  along  said  public  road  and 
highway,  driving,  or  riding  in  vehicles  drawn  by  horses  of 
ordinary  gentleness  and  training,  at  or  near  the  said  place, 
all  of  which  the  defendant,  its  officers,  agents  and  servants 
knew,  or  by  exercising  ordinary  care  would  have  known. 
And  the  said  defendant  also  recklessly,  negligently  and  care- 
lessly failed  to  warn  or  take  any  precautions  to  guard  the 

public  generally  and  especially  the  said ,  in 

so  traveling  along  and  over  said  public  road  and  highway  of 
or  against  the  dangerous  conditions  aforesaid,  which  it  reck- 
lessly and  negligently  created  and  maintained,  as  aforesaid. 


PERSON^iL   INJURIES  937 

And  the  plaintiff  further  complains  and  avers  that  his  intes- 
tate,   ,  was,  on,  to  wit,  the day  of 

,   19 . . ,   traveling   along,   over  and  upon   said 

public  road  and  highway  as  he  had  a  right  to  do,  at  or  near 
the  place  where  the  said  defendant  had  placed  and  located  and 
was  maintaining  its  said  steam  boiler,  engine  and  said  safety 
or  pop-valve  and  pipe  attachments,  and  was  exercising  due 
care  on  his  part,  and  was  occupjdng  a  cart  and  driving  a  horse 
hitched  to  and  drawing  said  cart,  and  which  horse  was  of 
ordinary  gentleness  and  training,  and  was  passing  or  about 
to  pass  by  said  engine  and  boiler,  and  upon  the  open  passage 
way  of  said  public  road  and  highway,  when  there  was  sud- 
denly ejected,  discharged,  and  released  from  defendant's 
said  steam  boiler  and  engine,  by  means  of  its  said  auto- 
matic safety  or  pop-valve  and  pipe  attachments,  in,  across  and 
over  and  laterally  and  horizontally  across  and  over  said  pub- 
lic road  and  highway,  a  sudden  stream,  cloud  and  gust  of 
steam  and  hot  mist  directly  in  front  of,  and  at,  or  nearly  at, 
the  face,  head  and  foreparts  of  said  horse,  and  the  head  and 
body  of  said  horse  were  partially  enveloped  in  said  stream 
and  hot  mist,  and  at  the  same  time  there  were  produced  by 
said  safety  or  pop-valve  and  attachments  and  the  escaping 
steam,  hissing  and  whistling  noises  and  a  sharp  report  near 
the  said  horse,  which  ejected  and  released  steam  and  hot  mist 
in  close  proximity  to  said  horse,  and  which  said  noises  and 
sounds  in  like  close  proximity,  were  of  such  an  unusual  and 
extraordinary  appearance  and  character  as  naturally  tended 
and  were  well  and  reasonably  calculated  to  frighten  and 
terrify  and  render  uncontrollable  the  said  horse,  which  was,  as 
aforesaid,  a  horse  of  ordinary  gentleness  and  training,  and  did 
frighten  and  terrify  said  horse,  so  that  said  horse  plunged  and 
reared  and  became  uncontrollable,   whereby,   and  by  reason 

whereof,  the  said was,  at  and  near  to  said  place, 

violently  precipitated  and  hurled  to  the  ground  and  upon  said 
roadway,  and  thereby  sustained  injuries  and  wounds  to  his  head 
and  body,  producing  paralysis,  lameness,  sickness  and  disorder, 
from  which  said  wounds  and  injuries  so  inflicted  the  said  .... 

afterwards,  on,  to  wit,  the   day  of 

,  19..,  died. 

And  the  plaintiff  avers  that  by  reason  of  the  premises,  as 
set  forth  in  the  foregoing  two  counts  of  this  declaration,  and 
in  each  of  them,  an  action  hath  accrued  to  the  said  plaintiff 
to  have  and  recover  damages  of  said  defendant,  in  pur- 
suance of  the  statute  for  such  cases  made  and  provided;  that 
he  has  sustained,  is  entitled  to  recover  and  demands  damages 
in  the  sum  of dollars  ($ ). 

And  therefore  he  brings  his  suit. 


938  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

1555  Frightening  horses,  street  car  whistle,  Narr.   (Mich.) 

For  that  whereas  the  said  defendant  heretofore,  to  wit,  on 

the day  of ,  19 . . ,  to  wit,  at  the 

county  of in  said  state,  to  wit,  at  the  county  of 

in  said  state,  to  Avit,  at  the  county  of 

in  said  state,  and  for  a  long  time  prior  and  subsequent  to 
said  date  owned,  was  possessed  of,  maintained  and  operated  a 
certain    electric    interurban    railroad,    passing    through    said 

counties  of   ,    and    

from  the  city  of  in  said  state  to  the  city  of 

in  said  county  of ,  and  state  of 

Michigan,  and  from  said  city  of to  the  city  of 

,   in  said   state   of  Michigan,   as  well   as   divers 

other  interurban  electric  railroads  and  electric  street  railroads 
in  divers  cities  in  said  state  of  Michigan,  known  and  desig- 
nated as  the 

And  that  on  the  date  aforesaid,  at  the  township  of 

in  said  county  of ,  the  said  defendant 

being  also  the  owner,  in  possession  of,  maintaining  and  operat- 
ing said  interurban  electric  railway  between  said  city  of  .... 

and  said  city  of  ,  and  between  said 

city  of and  said  city  of ,  as  afore- 
said, was  then  and  there  continually  running  large  numbers 
of  freight  and  passenger  cars  propelled  by  electricity  over  its 

said  railway  between  said  city  of and  said  city 

of ,  and  between  said  city  of ,  and 

said  city  of 

And  the  said  plaintiff  further  avers  that,  on,  to  wit,  said 
of and as  aforesaid,  the  said  def end- 
ant 's  electric  railway  track  was,  and  still  is,  located  along  and 
within  the  boundaries  of  the  public  highway,  and  especially 

that  in  the  township  of in  said  county  of 

,  at  the  place  where  the  injuries  and  grievances 

hereinafter  mentioned  and  set  forth  were  committed  by  said 
defendant,  the  said  defendant's  electric  railway  track  over 
which  its  freight  and  passenger  cars  then  were  and  still  are 
being  operated  by  electricity,  then  was  and  still  is  situated 
within  the  boundaries  of  a  public  highway  in  said  township 
of 

And  the  said  plaintiff  further  avers  that,  on,  to  wit,  said  .... 

day  of ,  19  •  • ,  large  numbers  of  teams  with 

carriages,  wagons  and  other  vehicles  carrying  passengers,  prod- 
uce and  other  goods  and  chattels  were  continually,  rightfully 
and  lawfully  passing  and  repassing  over  the  aforesaid  public 

highway  in  said  township  of ,  in  said  county  of 

,  through  and  along  which  said  public  highway, 

the  said  defendant's  interurban   electric   railway  track  was 


PERSONAL   INJURIES  939 

located  and  over  which  said  defendant  was  then  and  there 
continually  running  large  numbers  of  freight  and  passenger 
cars  as  aforesaid. 

And  the  said  plaintiff  further  avers  that,  on,  to  wit,  said  .... 

day  of ,  19. .,  he,  the  said  plaintiff,  was  driving 

over  and  along  the  said  public  highway  in  said  township  of 

,  in  said  county  of   ,  over  and 

along  which  said  public  highway  the  electric  interurban  rail- 
way tracks  of  said  defendant  were  located  as  above  set  forth, 
with  a  pair  of  safe,  well  broken  horses  attached  to  a  wagon 
in  and  with  which  said  plaintiff  was  taking  divers  persons 

and  personal  property  to  said  city  of ;  and  with 

all  due  care  and  diligence  on  the  part  of  said  plaintiff,  and 
without  any  fault  or  negligence  whatever  on  his  part ;  that 
while  so  driving  along  said  highway  as  aforesaid,  in  said  town- 
ship of in  said  county,  the  said  defendant,  by 

its  servants,  agents  and  employees,  ran  one  of  its  freight 
cars  and  also  one  of  its  passenger  cars  over  and  along  said 
track,  and  passed  the  team  so  being  driven  by  the  said 
plaintiff. 

That  it  then  and  there  became  and  was  the  duty  of  the 
said  defendant,  its  servants,  agents  and  employees  in  running 
its  said  cars  over  and  along  said  railway  track  as  aforesaid, 
not  to  unnecessarily  sound  the  whistle  on  said  cars  and  not  to 
frighten  the  said  plaintiff' 's  team  by  sounding  said  whistle; 
and  also  it  became,  and  then  and  there  was  the  duty  of  the 
said  defendant,  its  servants,  agents  and  employees  to  use  due 
and  proper  care  and  reasonable  diligence  and  care  in  running 
said  cars  so  as  not  to  frighten  the  team  of  said  plaintiff  while 
driving  along  said  highway  as  aforesaid,  and  if  said  team  did 
become  frightened  by  said  cars  or  the  whistle,  it  then  became 
and  was  the  duty  of  said  defendant,  its  agents,  servants  and 
employees  to  stop  said  car  and  not  to  sound  said  whistle  until 
said  plaintiff  could  get  his  said  team  under  control. 

And  the  said  plaintiff  further  avers 'that,  on,  to  wit,  said 

day  of  ,  19. .,  at  the  township  of 

,  in  said  county  of ,  the  said  defend- 
ant wilfully  and  maliciously,  with  intent  to  frighten  the 
team  so  being  driven  by  said  plaintiff  over  and  along  said 
highway,  did  run  one  of  its  said  passenger  cars  past  the  team 
of  said  plaintiff  so  as  aforesaid  then  and  there  being  driven 
along  said  highway  by  said  plaintiff,  and  when  a  short  dis- 
tance behind  said  team,  said  defendant,  by  its  servants,  agents 
and  employees,  maliciously,  negligently  and  wilfully  and  with- 
out any  reason  or  cause  for  so  doing,  sounded  the  whistle  of 
said  car  in  such  manner  as  to  frighten  the  horses  of  said  plain- 
tiff so  being  driven  along  said  highway  by  said  plaintiff;  that 
said  plaintiff  then  and  there  exercised  and  employed  all  due, 
proper  and  reasonable  care  and  diligence  on  his  part  to  hold 
and  control  said  team,  and  did  get  said  team  under  full  and 


940  ANNOTATED   FORMS   OF    PLEADING   AND    PRACTICE 

complete  control ;  that  after  said  plaintiff  had  so  got  said  team 
under  his  control,  and  as  said  car  was  passing  said  team 
on  said  highway  as  aforesaid,  the  said  defendant,  by  its 
agents,  servants  and  employees,  again  sounded  said  whistle, 
without  any  reason  or  cause  therefor,  a  large  number  of  times 
for  the  express  purpose  of  frightening  said  team  and  of  in- 
juring said  plaintiff;  that  at  the  time  said  whistle  was  sounded 
as  aforesaid,  said  ear  was  not  approaching  any  crossing  nearer 
than  one  and  one-half  miles  from  the  point  where  said  whistle 
was  sounded;  and  there  was  no  reason  whatever  for  the  said 
defendant,  by  its  said  servants,  agents  and  employees,  to  sound 
said  whistle;  that  the  said  defendant,  its  agents,  servants  and 
employees,  then  and  there  well  knew  at  the  time  said  whistle 
was  sounded  as  aforesaid,  that  said  plaintiff's  team  was  fright- 
ened and  liable  to  run  away  on  account  of  the  repeated  sound- 
ing of  said  whistle. 

Yet,  the  said  defendant,  by  its  agents,  servants  and  em- 
ployees, disregarding  its  duty  as  aforesaid,  wilfully,  mali- 
ciously, wantonly  and  negligently  continued  to  sound  said 
wdiistle  after  it,  the  said  defendant,  its  agents,  servants  and 
employees  well  knew  that  the  plaintiff's  said  team  was  being 
frightened  by  said  whistle  and  the  passing  of  said  car,  and  did 
not  stop  or  attempt  to  stop  said  car  or  cease  to  sound  said 
whistle  until  said  team  of  said  plaintiff  was  so  frightened  that 
it  was  impossible  for  said  plaintiff  to  control  and  manage  said 
team. 

And  the  said  plaintiff  further  avers  that  by  reason  of  the 
aforesaid,  wilful,  malicious,  wanton  and  negligent  acts  of  the 
said  defendant,  its  servants,  agents  and  employees  as  afore- 
said, in  negligently  sounding  said  whistle  as  aforesaid,  at  the 
time  and  place  aforesaid,  the  same  team  of  the  said  plaintiff 
then  and  there  became  frightened  and  ran  away  from  the 
control  of  said  plaintiff  and  overturned  said  wagon,  and 
with  great  force  and  violence,  the  said  plaintiff  was  thrown 
from  said  wagon  and  greatly  bruised  and  injured;  that  said 
wagon  was  totally  and  entirely  destroyed ;  that  the  said  plain- 
tiff was  severely  injured  in  his  head,  face,  shoulders,  arms, 
hands  and  fingers;  that  his  skull  was  fractured,  his  shoulder 
severely  bruised  and  injured,  his  nose  broken,  his  cheek  bone 
broken  and  displaced,  his  skull  broken  and  displaced,  his 
hands  and  fingers  severely  bruised,  the  skin  and  flesh  on  his 
face  and  forehead  being  lacerated  and  torn  aw^ay ;  by  reason 
whereof,  the  said  plaintiff  then  and  there  suffered,  and  from 
thence  to  the  present  time  has  continued  to  suffer  great  pain 
and  anguish  of  mind  and  body  for  his  life  time  on  account  of 
the  permanent  character  of  his  said  injuries;  that  from  the 
time  of  receiving  his  said  injury  as  aforesaid,  he  has  been  and 
still  is,  by  reason  thereof,  sick,  sore,  lame  and  disordered,  and 
has  been  thereby  prevented  from  carrying  on  his  usual  affairs 
and  business;  and  on  account  of  the  permanent  character  of 


PERSONAL  INJURIES  941 

his  said  injury,  he  will  for  his  life  time  be  prevented  from 
carrying  on  and  performing  his  usual  affairs  and  business ;  that 
he  has  been  compelled,  and  will  continue  to  be  compelled  to 
pay  out  and  expend  large  sums  of  money  for  care,  nursing, 
medicine,  medical  attendance  and  surgical  attendance,  and 
operations  in  attempting  to  be  relieved  and  cured  of  his 
injuries ;  that  the  said  wagon  was  and  is  totally  destroyed  and 
worthless ;  that  by  reason  of  said  injury  there  remains,  and  for 
his  life  time  will  continue  to  remain,  a  long  and  large  scar  and 
disfigurement  of  his  face  and  person;  that  on  account  of  the 
frightening  of  said  horses  as  aforesaid,  said  horses  have  become 
nervous,  easily  frightened,  and  unsafe,  and  are  worth  a  large 
sum  of  money  less  than  they  would  have  been  if  they  had  not 
been  so  frightened  by  the  negligence  of  the  defendant  as  afore- 
said, by  reason  of  which  and  whereby  the  said  plaintiff  has 
suffered  damages  in  a  large  amount,  to  wit,  in  the  sum  of 
dollars,  and  therefore  he  brings  suit. 

1556  Hazardous  occupation,  action,  damages 

The  employment  of  a  child  in  a  hazardous  occupation  which 
results  to  his  personal  injury  impliedly  renders  the  employer 
liable  under  the  statute  to  an  action  by  the  child  for  damages, 
not^vithstanding  that  the  child  might  have  misrepresented  his 
age  at  the  time  of  his  employment.  The  provision  of  the  statute 
which  creates  this  action  is  valid.i'^  An  employer  is  liable  for 
injury-  sustained  by  a  minor  regardless  of  whether  he  knew 
the  true  age  of  the  minor  or  the  misrepresentation  by  the  minor 
of  his  age  at  the  time  of  the  employment,  i^^  A  parent  estoppes 
himself  from  recovering  damages  for  the  loss  of  time  and  inabil- 
ity to  work  of  a  minor  child,  by  bringing  an  action  for  the 
minor's  injuries  in  his  name  as  next  friend  and  claiming  dam- 
ages for  loss  of  time,  etc.^'^^ 

1557  Hazardous  occupation,  Narr.  (111.) 

For  that  whereas,  the  defendant,  the   , 

a  corporation,  was,  on  the day  of , 

19   .,  operating  and  managing  by  its  agents  and  employees,  a 

certain    or   manufacturing    establishment,   m 

the  city  of' and  the  county  of and 

state  of  Illinois,  in  which  said  mill,  steel  of  various  kinds  was 
manufactured  for  sale,  which  said  business  was  a  gainful  occu- 
rs Beauchamp  v.  Sturges  &  Burn  1^4  American  Car  &  foundry  Co  v. 
Mfff  Co.,  250  111.  303,  305,  311  Armentraut,  214  111.  509,  514  (1905). 
(1911V  Sec  11,  Child  Labor  law  its  American  Car  &  Foundry  Co. 
CHurd's  Stat.  1909,  p.  1082).                v.  Hill,  226  lU.  227,  236  (1907). 


942  ANNOTATED   FORMS  OF   PLEADING  AND  PRACTICE 

pation  to  the  defendant ;  that  in  said  mill,  for  carrying  on  the 
said  business,  said  defendant  had  certain  machinery  and  appli- 
ance consisting  of  engines,  shafting,  pulleys,  belts,  furnaces, 
straighteners,  rollers  and  other  machinery  operated  by  steam 
power. 

And  the  plaintiff  avers  that  on  the  day  and  year  aforesaid, 
he  was  *  under  the  age  of  sixteen  years  *  ^^^  and  was  then  and 
there  unlawfully  employed  by  the  defendant  at  its  said  mill  or 
manufacturing  establishment,  under  the  direction  and  control 
of  a  foreman  of  the  defendant,  said  foreman  having  control 
and  authority  over  the  plaintiff,  and  standing  to  the  plaintiff 
as  the  representative  of  the  defendant,  their  common  master; 
that  the  plaintiff  was  put  to  work  by  the  said  foreman  to  oper- 
ate steam  machinery,  to  wit,  to  straighten  angle  bars  by  feed- 
ing them  into  or  running  them  through  a  straightener ;  that 
said  straightener  was  a  machine  constructed  of  steel  and  iron, 

consisting  of heavy  steel  rollers  about 

feet  long  and  about to inches  in  diameter, 

three  of  the  smaller  rollers  being  directly  above  the  tangency 
of  the  four  larger  rollers,  the  four  larger  rollers  having  grooves 

circling  the  rollers  about or inches  apart, 

through  and  into  which  the  angle  bar  was  fed  or  pushed  and 
held  in  place  by  the  three  upper  rollers,  around  which  upper 
rollers,  and  directly  above  the  grooves,  were  projecting  bands 
or  collars  to  fit  the  grooves,  all  of  which  rollers  were  at  each 
end  run  in  boxes  or  bearings  firmly  attaching  the  two  frames ; 
that  the  four  lower  rollers  by  a  combination  of  gears,  were 
geared  to  a  shaft  which  carried  a  pulley  connected  to  a  line 
shaft  run  by  steam  power,  by  means  of  a  belt,  which  revolved 
the  rollers  towards  each  other  at  about  sixty  revolutions  a 
minute,  so  that  the  angle  bar,  when  pushed  into  one  of  the 
grooves,  was  caught  by  the  rollers  and  carried  through  the 
machine  and  straightened ;  *  that  said  work  was  extra  hazardous 
employment,*  whereby  the  plaintiff's  life  and  limbs  were  in 
danger. 

By  means  of  the  premises,  and  while  the  plaintiff  was  so 
operating  said  machine,  his  left  hand  and  arm  and  the  first 
finger  of  the  right  hand  came  in  contact  with  a  certain  part 
thereof  and  were  drawn  into  said  rollers,  thereby  crushing 
and  mangling  the  said  left  hand  and  arm  of  the  plaintiff,  and 
the  said  first  finger,  so  that  the  said  arm  had  to  be  amputated 
between  the  elbow  and  the  shoulder,  and  the  said  first  finger 
amputated  above  the  second  joint,  and  other  parts  of  the  body 
of  the  plaintiff  were  bruised  and  wounded  and  his  life  despaired 

176  The  foregoing  count  is  under  age  of  fourteen  years"  instead  of 

section  38,   chapter  48,  Kurd's  Re-  sixteen,  etc.,  and  omitting  the  phrase, 

vised  Statutes.     A  count  under  sec-  ' '  which  said  work  was  an  extra  haz- 

tion  33  Ibid,  may  be  drawn  in  sim-  ardous    employment"    as    indicated 

ilar  language  as  above  by  averring  by  stars, 
that   the  plaintiff  was   "under   the 


PERSONAL  INJURIES  943 

of,  and  he  became  sick,  sore,  lame  and  disordered  and  perma- 
nently injured,  and  so  remained  for  a  long  space  of  time,  to 
wit,  from  thence  hitherto,  and  will  so  remain  permanently 
crippled,  during  all  which  time  he  thereby  suffered  great  pain, 
in  body  and  mind,  and  was  and  will  be  hindered  from 
transacting  his  business  and  affairs ;  that  his  injuries  were  the 
direct  result  of  said  unlawful  employment,  and  that  said 
unlawful  employment  was  the  proximate  cause  of  his  injuries. 
Wherefore,  etc. 

h 

For  that  whereas,  on,  to  wit,  ,  19 . . , 

the  defendant,   ,  a  corporation,  was  engaged  in 

the  manufacture  of  tin,  tin-ware  and  other  metal  products, 
and  then  and  there  used  in  the  manufacture  of  its  said  metal 
products  certain  stamping  machines  operated  by  steam  power, 
for  use  in  stamping  sheet  metal,  tin-ware  and  other  metal 
products,  and  the  plaintiff  herein  was  in  the  employ  of  the 
defendant  and  was  engaged  at  work  on  divers  of  the  machines 
so  as  aforesaid  used  by  the  defendant  at  its  said  factory  at, 

to  wit,  number street,  in  the  city  of 

county  of and  state  of  Illinois ;  that,  on,  to  wit, 

the  date  aforesaid,  while  the  plaintiff'  was  employed  by  said 
defendant  and  while  plaintiff  was  then  and  there  a  minor, 

under  the  age  of years,  the  said  defendant  then  and 

there  directed  the  plaintiff  to  go  to  work  and  operate  a  certain 
machine  known  as  a  punch  press,  which  said  punch  press  was 
then  and  there  being  used  by  the  defendant  in  the  defend- 
ant's said  factory  in  stamping  certain  sheets  of  metal  and 
which  said  punch  press  was  then  and  there  being  operated  by 
steam  power ;  and  that  there  was  then  and  there  in  full  force 
and  effect  a  certain  statute  theretofore  passed  by  the  legis- 
lature of  the  state  of  Illinois,  which  said  statute  is  known  as 
paragraph  15,  chapter  48,  Revised  Statutes  of  Illinois,  which 
said  statute  is  in  words  and  figures  following,  to  wit:  (Insert 
statutory  provision). 

That  the  said  defendant  well  knowing  the  premises  did  then 
and  there,  on,  to  wit,  the  date  aforesaid,  in  violation  of  said 
statute  direct  the  plaintiff  herein  to  operate,  manage  and  con- 
trol said  punch  press  and  to  stamp  the  said  sheets  of  tin  upon 
said  punch  press,  and  while  so  engaged  at  his  work  for  the 
said  defendant,  the  plaintiff  then  and  there,  without  fault  on 
his  part,  and  while  in  the  exercise  of  all  due  care  and  caution 
for  his  own  safety  in  operating  said  punch  press  and  by  rea- 
son of  the  violation  of  the  statute  aforesaid  by  the  defendant, 
had  his  right  hand  caught  in  said  punch  press,  and  the  plain- 
tiff's right  hand  was  then  and  there  and  thereby  greatly 
crushed,  wounded,  and  injured  and  divers  of  the  bones  and 
fingers  of  the  plaintiff's  right  hand  were  then  and  there  so 


944  ANNOTATED   FORMS   OF   PLEADING    AND   PRACTICE 

injured  and  mangled  that  amputation  thereof  became  and  was 
necessary;  and  the  plaintiff  was  otherwise  injured  and  his  right 
hand,  wrist  and  arm  are,  and  in  the  future  will  be  perma- 
nently injured  and  disabled;  and  he  has  suffered  great  pain 
and  anguish  of  body  and  mind  and  he  will  in  the  future  con- 
tinue to  suffer  great  pain  and  anguish  of  mind  and  body;  and 
the  plaintiff  has  been  otherwise  injured  and  has  sustained 
damages  in  the  sum  of dollars. 


By  

his  next  friend. 
By  

his  attorney. 


(Michigan) 

For  that  whereas,  heretofore,  to  wit,  on  the day  of 

,  19 .  . ,  at  the  city  of ,  in  said  county, 

the  said  defendant  was  a  manufacturing  corporation  with  a 

plant  at   avenue,  in  the  city  of   , 

said  plant  facing  on avenue,  and  being  between 

said  avenue  and  the  rail- 
road, and  the  said  plaintiff  at  the  time  aforesaid  was  an 
employee  of  the  said  defendant  charged  with  the  duty  of 
doing  such  work  at  the  said  plant  as  he  should  be  directed  to 
do  by  his  foreman,  and  other  superiors  and  officers  of  the 
said  defendant ;  that  plaintiff'  was  at  the  time  aforesaid,  an 

infant  under  sixteen  years  of  age,  to  wit,  of  the  age  of 

years;  that  among  other  duties  devolving  upon  the  plaintiff, 
and  the  work  that  he  was  actually  doing  at  the  time  he  received 
the  injuries  hereinafter  referred  to,  it  was  his  duty  to  wheel 
castings  from  the  front  to  the  rear  portion  of  said  plant,  which 
was  for  him  heavy  and  laborious  work,  he  being  required  to 
move  said  castings  from  place  to  place  by  means  of  a  wheel- 
barrow. 

And  the  plaintiff  avers  that  on  said day  of 

,  19. .,  he  was  charged  with  the  duty  of  moving  heavy 

castings  by  means  of  a  wheel-barrow,  and  by  reason  of  the 
premises  it  became  and  was  the  duty  of  the  said  defendant 
to  furnish  plaintiff  a  reasonably  safe  place  in  w^hich  to  do  his 
work,  and  to  furnish  plaintiff  a  reasonably  safe  passageway 
through  which  to  push  said  wheel-barrow  loaded  with  castings. 

Yet,  the  said  defendant,  well  knowing  the  premises,  did  not 
regard  said  duty  or  duties,  or  either  of  them,  but  on  the 
contrary  wholly  disregarded  the  same,  and  wholly  failed  to 
furnish  plaintiff  a  reasonably  safe  place  in  which  to  perform 
his  work,  and  wholly  failed  to  furnish  plaintiff  a  reasonably 
safe  way  through  which  to  push  his  wheel-barrow  so  loaded 
as  aforesaid,  and  permitted  said  passageway  to  become 
obstructed  with  castings,  and  the  plaintiff  was  required  to 
push  said  wheel-barrow  through   a   temporary   and  unusual 


PERSONAL  INJURIES  945 

passageway,  which  was  not  sufficiently  wide  to  permit  the 
reasonably  safe  passage  of  said  wheel-barrow  through  the 
same,  and  which  said  last  mentioned  passageway  led  imme- 
diately by  a  certain  dangerous  emery  wheel,  which  was  wholly 
unprotected  and  unguarded,  thereby  rendering  said  passage- 
way extremely  dangerous,  of  all  of  which  the  said  defendant, 
by  its  proper  agents  and  officers  had  due  notice  and  full 
knowledge,  and  of  all  of  which  the  said  plaintiff,  by  reason 
of  his  youth  and  inexperience  was  wholly  ignorant. 

2.  That  on  the  day  and  date  aforesaid  said  plaintiff  was 
engaged  in  the  actual  discharge  of  his  duty  and  in  the  obedi- 
ence of  orders,  and  he  charges  that  by  vrtue  of  section  5344 
of  the  Compiled  Laws  of  the  state  of  Michigan,  1897,  by 
reason  of  the  fact  that  he  was  under  sixteen  years  of  age,  the 
said  defendant  was  in  duty  bound  to  desist  and  refrain  from 
putting  plaintiff  at  any  employment  whereby  his  life  or  limb 
would  be  endangered,  or  his  health  likely  to  be  injured. 

And  the  plaintiff  avers  that  he  was  at  the  time  under  the 

age  of  sixteen  years,  to  wit,  of  the  age  of  

years;  and  that  notwithstanding  said  statute  and  the  duty 
imposed  upon  the  defendant  thereby,  said  plaintiff  was  re- 
quired to  push  a  wheel-barrow  loaded  with  castings  through 
a  narrow  and  dangerous  temporary  passageway,  passing  by 
an  unguarded  and  unprotected  emery  wheel. 

And  the  plaintiff"  avers  that  on  the  day  aforesaid,  at  the 
place  aforesaid,  he  was  pushing  a  wheel-barrow  load  of  cast- 
ings from  the  front  to  the  rear  portion  of  the  plant  of  the 
said  defendant  through  said  temporary  passageway;  that  he 
was  at  the  time  in  the  exercise  of  due  care  and  caution,  and 
all  the  care  and  caution  of  which  he  was  capable ;  that  he  was 
wholly  free  from  negligence  that  he  understood  and  appre- 
ciated; and  that  while  so  engaged  in  said  work  the  front  of 
said  wheel-barrow  became  entangled  and  obstructed  with  said 
castings  and  obstructions,  and  while  attempting  to  extricate 
the  same,  without  any  fault  or  negligence  on  his  part,  and 
wholly  through  the  fault  and  negligence  of  the  said  defendant, 
by  its  officers  and  agents,  in  the  manner  aforesaid  and  for 
the  reasons  aforesaid,  the  back  part  of  his  right  hand  came  in 
contact  with  said  unguarded  and  unprotected  emery  wheel 
and  was  burned  and  ground  by  the  same,  and  injured  to  such 
an  extent  that  although  the  same  has  been  operated  upon  and 
treated  on  four  different  occasions,  plaintiff  has  not  yet  re- 
covered from  said  injury;  and  plaintiff  avers  that  said  injury 
to  said  hand  is  of  a  permanent  character,  and  that  he  will 
never  fully  recover  from  the  same ;  that  in  consequence  of 
said  injury  he  has  suffered  the  most  excruciating  pain  and 
distress,  and  must  suffer  like  pain  and  distress  in  the  future 
indefinitely;  that  in  consequence  of  said  injury  he  became 
sick,  sore,  lame  and  disordered,  and  will  be  so  sick,  sore,  lame 


946  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

and  disordered  indefinitely;  that  he  has  been  permanently 
deprived  of  his  capacity  to  earn  money  and  wages  with  his 
hand,  and  that  the  scar  and  disfiguration  will  be  of  a  per- 
manent character,  and  has  caused  plaintiff  to  suffer  great 
mental  pain  on  account  of  said  disfiguration  of  his  hand,  and 
will  cause  him  to  suffer  like  pain  in  the  future  indefinitely; 
and  that  he  will  never  be  restored  to  the  full  use  of  his  said 
right  hand;  and  the  plaintiff  has  been  otherwise  greatly  and 
seriously  injured.    To  his  damage,  etc. 

1558  Independent  contractor,  action,  respondeat  superior 

An  independent  contractor  is  he  who  contracts  to  do  a  spe- 
cific piece  of  work  by  furnishing  his  own  assistants  and  by 
executing  the  work  either  entirely  in  accordance  with  his  own 
ideas  or  in  accordance  with  a  plan  previously  given  to  him  by 
the  person  for  whom  the  work  is  to  be  done,  but  not  being  sub- 
ject to  his  orders  in  respect  to  the  details  of  the  work,  and 
regardless  of  the  manner  of  paying  for  the  same.^'^ 

Persons  who  are  employed  to  superintend  the  construction  of 
different  classes  of  work  for  which  they  are  supplied  material 
and  who  employ  men  with  their  employer's  money  to  do  the 
work,  are  not  independent  contractors  of  the  persons  whom  they 
employ  to  do  the  work,  and  the  persons  employed  to  do  the  work 
are  the  servants  of  the  persons  who  employ  the  superintend- 
ents.^^^ 

Persons  engaged  in  the  construction  of  a  building  owe  to  others 
engaged  in  the  same  work,  a  duty  to  use  reasonable  care  to  avoid 
injury.^"^  A  corporation  is  liable  for  the  wrongful  act  of  an 
independent  contractor  who  exercises,  with  the  consent  of  the 
corporation,  some  charter  power  or  privilege  of  the  corporation, 
or  where  the  corporation,  having  a  public  or  statutory  duty  to 
perform,  permits  an  independent  contractor  negligently  to  per- 
form that  duty.  Every  act  of  a  corporation  is  done  under  its 
charter  in  the  sense  that  if  there  was  no  corporation,  it  could 
not  have  performed  the  act ;  but  if  the  act  is  one  which  might 
have  been  done  by  an  individual,  no  different  rule  obtains  as 
to  liability  merely  because  there  is  a  corporation.  A  corporation 
is  not  liable  for  the  negligence  of  an  independent  contractor 

iTTLinquist    v.    Hodges,    248    Dl.  iTsO'Eourke   v.    Sproul,    241    lU. 

491,  501  (1911).  576,  580    (1909). 

178  Linquist    v.    Hodges,    248    111. 
502. 


PERSONAL   INJURIES  947 

where  there  is  only  a  right  of  general  supervision  and  inspec- 
tion that  the  contract  shall  be  performed. ^^*^ 

The  principle  of  respondeat  superior  has  no  application  to  in- 
dependent contractors  where  the  party  for  whom  the  work  is 
done  is  not  the  immediate  superior  of  those  who  are  guilty  of 
the  wrongful  act  and  where  he  has  no  control  over  the  manner 
of  doing  the  work  under  the  contract,  unless  the  contract  directly 
requires  the  performance  of  work  intrinsically  dangerous,  how- 
ever skillfully  performed,  or  unless  an  individual  or  a  corpora- 
tion does  work  pursuant  to  a  special  franchise,  or  unless  a  mu- 
nicipal corporation  contracts  for  the  making  of  a  public  im- 
provement under  the  supervision  of  its  own  engineer  or  other 
proper  officer  and  subject  to  his  orders.i^i  A  municipality  is  not 
liable  for  the  negligence  of  an  independent  contractor  while  in 
the  performance  of  a  duty  which  is  in  no  way  devolved  upon 
it.i82 

1559  Independent  contractor,  Nair.  (111.) 

For  that  whereas,  the  defendant, ,  is  a  cor- 
poration duly  organized  and  existing  under  the  name  by  which 

it  is  herein  sued ;  that  on  or  about ,  19 .  . , 

it  was  by  and  through  certain  servants  performing  certain 
work  and  labor  upon  and  about  a  certain  fire  escape  on  the 

,  near  the  intersection  of street  and 

boulevard,  which  said  fire  escape  was  wholly  in 

said boulevard,  a  public  street  in  the  city  of 

,  Illinois ;  that  the  plaintiff  was  employed  by  cer- 
tain contractors  doing  business  under  the  firm  name  of 

,  who  were  also  performing  certain  work  and  labor 

about  said ;  that  plaintiff  was  on  said  date, 

while  in  the  performance  of  his  duties,  and  while  exercising 
due  care  and  caution  for  his  own  safety,  required  to  be  on  a 
certain  other  fire  escape  which  the  defendant  was  putting  up 

as  a  contractor  and  which  was  also  wholly  in  said 

boulevard,  and  directly  underneath  the  aforesaid  fire  escape 
upon  which  the  said  servants  of  the  defendant  were  then  and 
there  working ;  that  while  he  was  so  there  in  said  position,  the 
said  servants  of  the  defendant,  did  carelessly  and  negligently 
and  unlawfully  cause  and  permit  a  large  iron  drill  to  fall 
from  where  they  were  working  as  above  stated,  and  that  the 
same  struck  the  plaintiff  on  the  head,  and  thereby  fractured 

180  Boyd  V.  Chicago  &  Northwest-  182  Thompson  v.  West  Bay  City, 
ern  Ey.  Co.,  217  111.  332  (1905).              137  Mich.  94,  99  (1904). 

181  Chicago   V.    Murdock,    212    111. 
9   (1904). 


948  ANNOTATED   FORMS  OF   PLEADING   AND  PRACTICE 

his  skull,  and  he  was  thereby  greatly  and  grievously  injured 
both  physically  and  mentally;  that  he  has  been  and  will  be 
hindered  and  prevented  from  performing  his  usual  occupation 
and  employment;  that  he  has  and  will  sulTor  great  pain  and 
mental  anguish,  and  has  and  will  be  recjuired  to  spend  large 
sums  of  money  for  medical  aid  and  attention.  To  his  damage, 
etc.183 


For  that  whereas  the  defendant  is  a  corporation  duly 
organized  under  the  name  by  which  it  is  herein  sued,  and 
engaged  in  the  building  construction  business,  and  on  or 
about ,  1 . . ,  was  engaged  in  certain  construc- 
tion work  on  what  is  known  as  the  building, 

between  and  ,  near  

street, ,  

And  the  plaintiff  was  on  said  date  working  as  a  laborer 
in  the  basement  of  said  building  for  another  contractor,  to  wit, 

,  who  was  also  doing  certain  construction  work 

on  said  building.  And  the  defendant  knew,  or  should  have 
known,  that  plaintiff  was  then  and  there  so  working.  And  the 
said  defendant  prior  to  the  day  aforesaid,  carelessly,  negli- 
gently and  unlawfully  built  and  constructed  a  certain  floor 
or  scaffold  about  five  or  six  feet  wide  and  sixteen  or  eighteen 
feet  long,  on,  to  wit,  the  fifth  floor  of  said  building  above  the 
point  where  the  plaintiff  was  on  the  date  aforesaid  working, 
in  a  dangerous  and  unsafe  manner,  and  in  a  way  that  rendered 
it  liable  to  tip  up  or  collapse,  and  drop  material  on  to  the 
people  and  the  plaintiff  working  below,  all  of  which  defendant 
knew,  or  should  have  known,  in  that  the  defendant  did  not 
put  a  firm  and  secure  plank  or  support  under  one  end  of  the 
said  floor  or  scaffold,  but  did  simply  nail  a  cleat  five  or  six 
feet  long  on  to  one  side  of  a  plank  and  rest  one  end  of  the 
boards  composing  said  floor  or  scaffold  upon  said  cleat;  that 
on  said  plank  on  the  side  of  which  the  said  cleat  was  nailed 
rested  a  certain  derrick,  which  for  the  time  made  said  plank 
firm,  which  derrick  was  owned  and  operated  by  a  certain  other 

contractor,  to  wit, ,  which  was  doing  the  iron 

construction  work   on   said  building,   and  which   plank   was 

placed  there  by  the  said  for  the  sole  and  only 

purpose  of  resting  the  sill  of  said  derrick  upon  and  which  der- 
rick would  in  the  course  of  the  work  be  required  to  be  re- 
moved in  a  few  days.     That  the  defendant  knew,  or  should 

have  known,  that  the  said   would  soon  be 

required  to  remove  said  derrick  to  an  upper  floor,  and  that  as 
soon  as  it  was  so  removed  and  the  weight  taken  off  said  plank 

i83Langan    v.   Enos   Fire   Escape 
Co.,  233  111.  308   (1908). 


PERSONAL  INJURIES  949 

that  the  said  floor  or  scaffold  would  not  carry  any  large 
amount  of  weight,  but  if  any  considerable  weight  was  placed 
on  the  end  of  said  floor  or  scaffold  it  would  tip  down ;  and  the 
defendant  knew,  or  should  have  known,  that  prior  to  the 
date  aforesaid,  the  said  derrick  had  in  the  course  of  the  work 
been  removed  to  an  upper  floor,  and  that  one  end  of  said  scaf- 
fold was  insufficiently  supported,  and  that  the  same  was  dan- 
gerous and  unsafe;  and  yet  said  defendant  allowed  said  der- 
rick to  so  remain  there  with  rubbish,  brick  and  material  and 
short  planks  lying  upon  the  same,  and  did  not  secure,  make 
safe,  or  otherwise  support  said  end  of  said  floor  or  scaffold. 
That  the  defendant  knew,  or  should  have  known,  that  work- 
men about  said  building  were  likely  to  walk  upon  said  floor 
or  scaffold.  That  it  was  usual  and  customary  for  workmen 
to  walk  upon  any  of  the  floors  and  scaffolds  in  said  building, 
and  on  the  day  aforesaid  one  of  the  workmen  employed  in  the 
construction  of  said  building  did  walk  on  to  said  floor  or 
scaffold,  it  being  then  and  there  in  the  condition  above  stated, 
and  that  when  his  weight  was  added  to  the  weight  already 
on  said  floor  or  scaffold,  the  aforesaid  end  thereof  tipped  down 
a  distance  of,  to  wit,  four  or  five  feet  and  a  large  amount  of 
the  material  thereon  and  a  piece  of  plank  was  precipitated 
and  thrown  therefrom,  and  the  said  piece  of  plank  fell,  to  wit, 
six  stories  and  struck  the  plaintiff  upon  the  right  shoulder  with 
great  force  and  violence,  and  he  was  rendered  unconscious, 
and  his  shoulder  blade  was  broken,  and  thereby  he  was  made 
sick,  sore,  lame  and  disordered  and  otherwise  was  permanently 
injured,  and  made  to  suffer  great  pain  and  mental  anguish, 
and  rendered  unable  to  perform  his  usual  occupation  and 
employment.    To  the  damage,  etc.^^^ 

1560  "Jim  Crow"  car,  white  person  compelled  to  ride  in,  Narr. 
(Va.) 

For  this,  to  wit,  that  before  and  at  the  time  of  the  commit- 
ting the  grievances  herein  mentioned,  the  said  defendant  was 
a  common  carrier  of  passengers  for  hire  and  reward  in  and 

by  certain  trains  of  railway  cars  from 

county  to   county ;  and  while  the 

said  defendant  was  such  common  carrier  of  passengers  afore- 
said and  operating  a  line  of  cars  with  white  and  colored 
people  apart  as  required  by  law,  the  said  plaintiff,  who  is  a 
white  married  woman  over  twenty-one  years  of  age,  hereto- 
fore, to  wit,  on  the day  of at  the 

special  instance  and  requests  of  said  defendant,  became  and 
was  a  passenger  in  and  upon  the  train  of  the  said  defendant 
to  be  comfortably,  conveniently  and  safely  carried  as  a  white 

184  Flanagan   v.   Wells  Bros.    Co., 
237  111.  82,  88  (1908). 


950  ANNOTATED   FORMS  OP   PLEADING   AND   PILiCTICE 

passenger  thereby  on  a  certain  journey,  to  wit,  from 

to as  aforesaid  over  the  said  defend- 
ant's  road  for  a  certain  fare  and  reward  to  the  said  defend- 
ant in  that  behalf,  and  the  said  defendant  then  and  there 
received  the  said  plaintiff  as  such  passenger  to  be  carried  as 
aforesaid. 

And  thereupon  it  became  and  was  the  duty  of  the  said 
defendant  to  transport  the  said  plaintiff  as  a  white  passen- 
ger in  a  separate  car  or  apartment  set  part  by  the  said  defend- 
ant company  for  white  passengers,   from    to 

and  for  the  conductor  of  the  said  defendant  to 

act  in  good  faith  to  seat  her  in  the  car  thus  set  apart,  as 
provided  by  law. 

Yet,  the  said  defendant  not  regarding  its  duty  in  that 
behalf,  through  its  conductor,  did  not  in  good  faith  seat,  but 
on  the  contrary,  knowing,  or  by  the  exercise  of  proper  care 
could  have  known,  that  the  plaintiff  was  a  white  person,  failed 
and  refused  to  give  her  a  seat  in  the  car  set  apart  and  occupied 
by  white  passengers  for  said  journey,  in  this  that  the  said  plain- 
tiff, upon  boarding  ^aid  train,  undertook  to  go  in  the  car  set 
apart  for  white  people  along  with  other  white  people,  who  got 
on  said  train  at  said station,  but  the  said  con- 
ductor not  acting  in  good  faith  as  aforesaid,  and  knowing  said 
plaintiff  to  be  white,  or  could  have  known  by  the  exercise  of 
proper  care,  ordered  her  to  the  car  set  apart  for  the  colored 
people,  and  the  said  plaintiff  on  taking  hej-  seat  and  realizing 
that  she  was  in  the  colored  car,  immediately  undertook  to 
depart  therefrom,  but  the  said  conductor  demanded  her  to 
keep  her  seat  and  arrested  and  imprisoned  the  said  plaintiff  in 
said  colored  ear,  in  which  she  had  to  remain  in  what  is  known 
as  the  "Jim  Crow''  car,  in  a  seat  among  seats  occupied  by 

colored  people,  until  she  had  reached ,  at 

Avhich  place  she  was  released;  that  said  colored  car  at  the 
time  and  during  the  continuation  of  the  whole  journey,  to  wit, 

from  said station  to  contained 

and  was  occupied  by  colored  passengers  or  persons  of  African 
descent. 

And  by  reason  of  said  action  of  said  defendant,  through 
its  conductor,  the  said  plaintiff  was  greatly  humiliated  and 
insulted,  and  compelled  to  bear  all  of  the  injuries,  unpleasant- 
ness, hardships,  inconveniences,  discomforts,  humiliations, 
indignities  and  fatigues  which  are  and  were  the  very  reasons 
of  the  separation  of  the  colored  race  from  the  white  race  upon 
the  railroad  trains ;  and  the  said  plaintiff  became  nervous  and 
sick  and  disordered,  and  so  remained  and  continued  for  a  long 

space  of  time,  to  wit,  from  the day  of , 

to  the  present,  during  all  of  which  time,  the  said  plaintiff 
thereby  suffered  and  underwent  great  pain,  and  being  a  mar- 
ried woman  over  twenty-one  years  of  age  and  transacting  busi- 
ness of  her  own  she  was  hindered  and  prevented  from  per- 


PERSONAL  INJURIES  951 

forming  and  transacting  her  necessary  affairs  and  business, 
and  did  necessarily  pay  out  money  in  and  about  endeavoring 
to  be  cured  of  her  nervous  injuries  occasioned  by  the  said 
defendant  as  aforesaid.  And  other  wrongs  the  said  defendant 
did  to  the  said  plaintiff  to  the  great  damage  of  the  said  plain- 
tiff, and  against  the  peace  of  the  commonwealth.  Wherefore, 
etc. 

1561  Ladles,  adjusting",  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on ,  19.  •, 

to  wit,  at  the  county  aforesaid  the  defendant.,  w.... 
possessed  of  and  using  and  operating  certain  ladles  or  recep- 
tacles for  molten  metal  which  were  moved  upon  cars  or  wheels 
along  a  track  of  which  the  defendant. .  w.  . .  .  also  then  and 
there  possessed  and  w. . . .  using;  and  it  then  and  there  became 
and  was  the  duty  of  said  defendant.  .  not  to  permit  and  cause 
said  ladles  or  receptacles  for  metal  to  be  moved  nor  to  bring 
anything  into  contact  with  the  same  while  the  laborers  in 
its  employ  were  adjusting  said  ladles  or  receptacles  for  metal. 
And  the  plaintiff  avers  that  on  the  day  and  3'ear  and  at  the 
place  aforesaid  he  was  a  laborer  in  the  employ  of  the  defend- 
ant. .  and  was  in  the  discharge  of  his  duty  by  means  of  certain 
appliances  engaged  in  adjusting  one  of  said  ladles  or  recep- 
tacles for  metal,  when  the  defendant.  .  without  fault  or 
negligence  on  the  part  of  the  plaintiff  carelessly,  negligently, 
wilfully  and  wantonly  in  the  night  time,  and  without  notice 
to  the  plaintiff,  by  means  of  certain  car  ladles  or  engines  mov- 
ing on  wheels  along  said  track  moved  said  ladle  or  receptacle 
for  metal  which  the  plaintiff  was  then  and  there  engaged  in 
adjusting  violently  forward  so  that  the  same  without  fault  or 
negligence  on  the  part  of  the  plaintiff  and  by  reason  of  the 
careless,  negligent,  wilful  and  wanton  misconduct  of  the  de- 
fendant. .  then  and  there  ran  upon  and  struck  violently  against 
the  plaintiff. 

By  means  of  which  said  plaintiff  was  greatly  cut,  bruised  and 
wounded  and  rendered  permanently  sick,  sore,  lame  and  dis- 
ordered and  one  of  the  plaintiff's  (Describe  specific  injuries). 
And  the  plaintiff  by  reason  of  the  premises  suffered  great  and 
excruciating  agony  and  pain  and  will  permanently  suffer  the 
same  in  the  future  and  the  plaintiff's  spine  was  permanently 
injured  and  his  nervous  system  greatly  shocked  and  perma- 
nently shattered.    And  the  plaintiff  was  put  to  great  expense, 

to  wit, dollars  for  medical  attendance,  medicines 

and  nursing  in  an  endeavor  to  be  cured  of  the  injuries  afore- 
said and  will  permanently  in  the  future  be  compelled  to  make 
like  expenditures  for  the  same  purpose.  And  also  by  reason 
of  the  premises  the  plaintiff  has  been  from  thence  hitherto 
and  will  permanently  in  the  future  be  hindered  and  prevented 
from  attending  to  his  lawful  and  necessary  affairs  and  busi- 


952  ANNOTATED   FORMS   OF   PLEADING    AND    I'UACTICE 

ness  and  has  been  permanently  crippled  and  rend>ri-d  unable  to 
work.  And  also  by  reason  of  the  premises  the  plaintitf  has 
been  and  is  otherwise  greatly  injured  and  damaged,  to  wit, 
at  the  county  aforesaid.    Wherefore,  etc. 

1562  Ladles,  incompetent  servant,  Narr.  (111.) 

For  that  whereas,  the  defendant,  heretofore,  on.  to  wit,  the 

....  day  of ,  at ,  in  t  he  eount y  of 

and  state  of  Illinois,  was  engaged  in  the  foundry  business  in 
the  manufacture  of  various  articles  of  iron  and  metals,  con- 
nected with  a  certain  plant  which  it  there  had  for  that  pur- 
pose ;   that   it  then   and   there   had   certain   ladles,   vessels  or 
pots,  with  appliances  attached  thereto,  used  by  it  in  its  said 
business,  filled  with  metal  in  a  molten  state,  slag  and  other 
substances,  in  a  dangerously  high  and  heated  temperature  and 
condition;  that  he  was  then  and  there  employed  and  engaged 
by  said  defendant  to  work  in  and  about  said  manufacturing 
business  of  said  defendant  as  a  molder;  that  being  so  employed, 
the  plaintiff  and  the  servants  of  the  defendant  were  then  and 
there  on  the  day  and  year  aforesaid,  ordered  and  directed  by  a 
signal  to  go  to  a  certain  vessel  or  ladle  for  the  pur{)ose  uf  mak- 
ing certain  molten  metal  therefrom,  to  be  used  by  said  plaintitf 
and  the  servants  of  said  defendant  in  molding  certain  ........ 

shoes  or  other  manufactured  articles  in  and  about  the  business 
of  said  defendant. 

And  it  then  and  there  became  and  was  the  duty  of  said 
defendant  to  operate,  conduct  and  manage  said  foundry  busi- 
ness in  a  careful  manner  and  to  employ  for  that  puri)Ose  com- 
petent, sober  and  careful  servants,  who  woukl  use  due  care  and 
caution  while  handling  and  oi)erating  said  ladles  filled  with 
molten  metal,  for  the  safety  of  those  then  and  there  engaged  in 
the  business  of  said  defendant.  Yet  the  defendant  in  utter  dis- 
regard of  its  duty  in  that  behalf  then  and  there  negligently 
and  carelessly  employed  an  incompetent,  careless  and  reckless 
servant,  and  suffered  and  permitted  such  incompetent  servant 
of  said  defendant  to  work,  operate  and  manage  said  ladles 
filled  with  molten  metal  as  aforesaid,  of  which  incompetency 
of  said  servant  the  defendant  knew  or  by  the  exercise  of  reason- 
able diligence  might  have  known,  and  which  was  unknow-n  to 
the  plaintiff. 

By  means  whereof,  while  the  plaintiff  was  engaged  as  afore- 
said, and  exercising  due  care  and  diligence  for  his  safety,  the 
defendant  then  and  there  by  its  said  servant  or  servants  so 
wrongfully,  carelessly  and  negligently  worked  with  and 
operated  said  ladle  filled  with  metal  in  a  dangerously  high 
and  heated  temperature  as  aforesaid,  that  it  caused  said  metal 
or  substance  in  said  ladle  to  spill,  flow  and  explode  to  and  upon 
the  ground,  whereby  said  metal  and  substance  was  then  and 
there  thrown  with  great  force  and  violence  to  and  against  the 


PERSONAL  INJURIES 


953 


head,  chest,  abdomen,  limbs  and  various  parts  and  port  ons  of 
the  body  of  said  plaintiff;  by  means  whereof,  said  plamtiff  s 
head  was  fractured,  chest  broken,  and  the  whole  body  of  the 
said  plaintiff  was  injured  and  skin  and  flesh  of  various  parts  of 
the  person  and  body  of  the  plaintiff  were  then  and  there  severely 
burned,  scalded,  torn,  lacerated,  and  injured;  and  by  reason 
of  the  said  injury  so  received  as  aforesaid,  the  brain  of    ad 
plaintiff  was  then  and  there  exposed,  and  injured  and  vaiious 
parts  of  his  body  and  person  were  then  and  there  bruised, 
sprained,  injured,  fractured  and  broken,  thereby  and  there- 
from causing  plaintiff  to  then  and  there  become  and  he  ^^ds 
sick,   sore,   lame   and   disordered   and   he    so   remained   fiom 
thence  hitherto,  and  he  will  ever  so  remain,   during  all   ot 
which  time  the  plaintiff  suffered  great  and  excruciating  mental 
pain  and  anxiety,  and  he  will  ever  so  suffer;  and  in  conse- 
quence of  said  injuries  he  was  then  and  there  permanently 
injured    and    disabled   from   following   his    said    employrnent 
and  to  do  the  work  aforesaid,  or  any  kind  of  work,  and  by 
reason  thereof,  he  was  then  and  there  and  will  be  permanently 
deprived    of   his   means   of   support;    and   by   means    of   the 
premises,  the  plaintiff  was  forced  to  and  did  lay  out  divers 
sums    of    monev    and    incurred    divers    large    indebtednesses 

amounting  to,  to  wit,  the  sum dollars  in  and  about 

Savoring  to  be  cured  of  his  wounds,  hurts  and  bruises 
occasioned'as  aforesaid;  and  the  plaintiff  was  otherwise 
permanently  injured  by  reason  of  the  negligence  ot  said 
defendant  in  the  manner  and  form  as  aforesaid,  to  the  damage, 
etc. 

1563  Ladle  oven,  collapse,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  at  and  before  all  the 

times   hereinafter   mentioned   the   said    defendant.,    w 

possessed  of  and  operating  a  foundry  in  the  city  of  . . . ....  • .., 

in  the  county  of   ,  •  •  •    and  sta  e  of  Illinois 

aforesaid,  and  in  connection  therewith  had  a  small  room  called 
to  wit,  the  ladle  oven,  which  it  was  the  duty  of  said  plaintiff, 
who  was  then  and  there  one  of  the  servants  ot  said  defendant. ., 
to  occasionally  enter  as  such  servant    and  which  said  room 
had  a  cover  or  roof  with  heated  sand  thereon    which  it  was 
the  duty  of  said  defendant.  .   to  keep  in  a  safe  condition  so 
as  not  to  be  dangerous  to  the  servants  of  said  defendant 
whose  duty  it  was  to  enter  said  room;  yet,  said  defendant., 
well  knowing  the  premises,  but  not  regarding  .  .h.  .   duty  m 
that  behalf,  permitted  said  cover  or  roof  to  become  and  remain 
unsafe  so  that  bv  reason  thereof,  on,  to  wit,  the  ...   day  ot 
.,   and  without   any  negligence   on  the   part   ot   said 
plaintiff  a  portion  of  said  cover  or  roof,  together  wnth  the 
heated  sand  thereon  fell  upon  said  plaintiff,  who  in  the  dis- 
charge of  his  duty  as  such  servant  had  with  all  due  care  and 


954  ANNOTATED   FORMS   OF    PLEADING    AND   PRACTICE 

diligence  on  his  part  just  entered  said  room,  and  said  plaintiff 
was  thereby  then  and  there  injured  as  hereinafter  alleged. 

2.  And  whereas  also,  heretofore,  to  wit,  at  and  before  all  the 
times  hereinafter  mentioned,  said  defendant  ..w..  possessed 
of  and  operating  a  certain  other  foundry  in,  to  wit,  the  city  of 

,   in   the   county   of    and  state   of 

Illinois  aforesaid,  and  in  connection  therewith  had  a  small 
room,  called,  to  wit,  the  ladle  oven,  which  it  was  the  duty  of 
the  said  plaintiff,  who  was  then  and  there  one  of  the  servants 
of  said  defendant.  .,  to  occasionally  enter  as  such  servant, 
and  which  said  room  had  a  cover  or  roof  with  heated  sand 
thereon,  which  it  was  the  duty  of  said  defendant.  .  and  .  .h.  . 
then  superintendent  and  foreman  to  keep  in  a  safe  condition 
so  as  not  to  be  dangerous  to  the  servants  of  said  defendant.  ., 
whose  duty  it  was  to  enter  said  room;  yet,  said  defendant., 
through  .  .h.  .  then  foreman  who  then  and  there  liad  the 
charge  and  control  of  certain  servants  of  said  defendant.  . 
including  said  plaintiff,  and  whose  duty  it  was  to  direct  said 
last  mentioned  servants  including  said  plaintiff  in  the  per- 
formance of  their  services  and  in  the  doing  of  their  work  for 
said  defendant.  .  and  in  the  discharge  of  their  duties  in  and 
about  said  ladle  room,  well  knowing  that  said  roof  or  cover 
on  said  ladle  room  had  become  unsafe  and  was  likeh'  to  fall 
upon  any  of  said  last  mentioned  servants  including  said  plain- 
tiff, who  might  from  time  to  time  enter  said  ladle  room,  there, 
on,  to  wit,  the  ....  day  of ,  failed  to  warn  said  plain- 
tiff that  the  said  roof  or  cover  of  said  ladle  room  had  become 
unsafe,  and  was  likely  to  fall ;  by  means  whereof,  as  said  plain- 
tiff, in  the  discharge  of  his  duty  and  without  any  notice  of  .said 
danger,  and  with  all  due  care  and  diligence  on  his  part,  had 
entered  said  ladle  room,  he  was  then  and  there  struck  by  a 
portion  of  said  roof  or  cover  with  the  heated  sand  thereon, 
which  fell  upon  said  plaintiff'  while  he  was  so  in  said  ladle 
room  in  such  a  manner  that  said  plaintiff' 's  head  and  left  arm 
were  badly  bruised  and  injured  and  said  plaintiff  was  badly 
burned  by  said  heated  sand  in  and  about  his  head,  face,  arms, 
hands  and  feet;  and  said  plaintiff's  left  arm  and  portions  of 
his  body  were  permanently  injured  and  his  face,  arms,  hands 
and  feet  were  permanently  disfigured  by  reason  of  the  prem- 
ises; and  by  reason  thereof  said  plaintiff  underwent  great 
pain  and  suffering,  and  expended  a  large  sura  of  money,  to  wit, 

dollars,  in  and  about  endeavoring  to  be  cured  of 

his  said  injuries,  wounds,  hurts  and  bruises ;  and  was  thereby 

prevented  for  a  long  space  of  time,  to  wit, ,  from 

attending  to  his  usual  work  and  occupation,  and  lost  the  earn- 
ings which  otherwise  would  have  accrued  to  him  therefrom, 

to  wit, dollars ;  and  said  injuries  were  of  such  a 

serious  and  permanent  nature  that  said  plaintiff  has  been  much 
weakened  in  his  strength  and  ability  to  work  or  earn  wages 
therefrom,  and  in  consequence  thereof  has  lost  a  large  sum 


PERSONAL  INJURIES  955 

of  money,  to  wit, dolars,  which  he  would  other- 
wise have  been  able  to  earn  if  he  had  not  sustained  such 
injuries;  and  said  plaintiff  will  never  be  able  to  do  as  hard 
work  nor  earn  as  large  wages  as  he  was  doing  and  earning 
before  he  received  such  injuries  by  reason  of  the  premises. 
Wherefore,  etc. 

1564  Ladles,  spattering,  not  warned,  Narr.  (111.) 

For  that  whereas  on,  to  wit,  the  ....  day  of ,  19. ., 

at  the  city  of  ,  in  the  county  of   and 

state  of  Illinois,  the  defendant  was  engaged  in  the  manufac- 
ture and  reduction  and  shaping  of  iron  and  steel  and  other 
metals,  and  was  then  and  there  possessed  of  and  was  using  and 
operating  a  certain  large  vessel  or  receptacle,  commonly  known 
as  a  vessel,  used  in  said  manufacturing  and  reduction  of  iron 
and  steel  and  other  metals  aforesaid ;  that  in  such  use  and 
operation  of  said  vessel  or  receptacle  aforesaid  the  same  con- 
tained a  large  amount  of  iron,  steel,  slag,  and  other  substances 
in  a  semi-liquid  and  molten  state  and  heated  to  a  dangerously 
high  temperature  and  condition;  that  at  a  certain  time,  point 
or  stage  in  said  use  and  operation  of  said  vessel  and  receptacle, 
certain  particles  of  said  iron,  steel,  slag,  and  other  substances, 
so  heated  as  aforesaid,  were  liable  and  apt  to,  and  in  the 
ordinary  course  of  said  business  would  then  and  there  be  hurled 
and  thrown,  and  would  fly  and  spatter  from  and  out  of  said 
vessel  and  receptacle  aforesaid  to  a  great  distance  from  the 
same,  to  wit,  the  distance  of feet,  thereby  endanger- 
ing the  lives  and  limbs  of  persons  working  at  and  near  the 
same  and  within  said  distance  aforesaid  of  the  same;  that  at 
another  time,  point  or  state  in  said  use  and  operation  of  said 
vessel  or  receptacle  aforesaid,  the  said  substances  aforesaid  or 
any  part  thereof  would  not  be  hurled,  thrown  and  spattered 
around  and  over  the  same ;  all  of  which  facts  aforesaid  the 
defendant  then  and  there  ought  to  have  known  and  knew. 

And  the  plaintiff  further  avers  that  he  was  then  and  there  in 
the  employ  of  the  defendant  as  a  common  servant  for  hire, 
and  as  such  was  then  and  there  engaged  in  and  about  his  work 
and  employment  at  and  near  said  vessel  or  receptacle  afore- 
said and  within  said  distance  of,  to  wit, feet  of  the 

same,  and  was  in  the  exercise  of  ordinary  care  for  his  own 
safety. 

And  the  plaintiff  further  avers  it  then  and  there  became 
and  was  the  duty  of  said  defendant  to  have  notified  and  warned 
the  plaintiff  that  said  time,  point  or  stage  in  said  use  and  opera- 
tion of  said  vessel  and  receptacle  aforesaid  was  about  to  be 
reached,  when  said  particles  aforesaid  were  apt  and  liable  to, 
and  in  the  course  of  said  business  would  then  and  there  be 
hurled  and  thrown  and  would  fly  and  spatter  from  and  out 
of  said  vessel  and  receptacle  aforesaid,  so  that  the  plaintiff 


956  ANNOTATED   FORMS   OF   PLEADING    AND    PRACTICE 

might  have  a  reasonable  opportunity  to  adopt  such  measures  as 
would  protect  himself  from  said  particles  being  hurled,  thrown 
and  spattered  from  and  out  of  said  vessel  or  receptacle  as 
aforesaid. 

Yet,  the  defendant,  did  not  regard  its  duty  in  that  behalf, 
but  on  the  contrary  thereof  then  and  there  eart'lessly  and  negli- 
gently failed  to  warn  and  notify  the  plaintitf  of  that  said  time, 
point  or  state  in  said  use  and  operation  of  said  vessel  and 
receptacle  aforesaid  was  about  to  be  reached,  when  said  par- 
ticles aforesaid  were  apt  and  liable  to,  and  in  the  ordinary 
course  of  said  business  would  then  and  there  be  hurled  and 
thrown,  and  would  fly  and  s{)att('r  from  and  out  of  the  vessel 
and  receptacle  aforesaid,  so  that  the  plaintiff  might  have  a  rea- 
sonable opportunity  to  ado[)t  such  measures  as  wouKl  protect 
him  from  said  particles  so  being  hurled  and  thrown  and  spat- 
tered from  and  out  of  said  vessel  or  receptacle  as  aforesaid  ;  by 
means  and  in  consequence  whereof,  while  the  plaintiff  was  then 
and  there  in  the  exercise  of  reasonable  and  ordinary  care  for 
his  safety,  so  engaged  and  emi)loyed  as  aforesaid  and  unaware 
of  the  fact  that  said  time,  point  or  stage  in  said  use  and  ojiera- 
tion  of  said  vessel  and  receptacle  aforesaid,  when  said  particles 
aforesaid  were  apt  and  liable  to,  and  in  the  course  of  said  busi- 
ness would  then  and  there  be  hurled  and  thrown  and  would  fly 
and  spatter  from  and  out  of  said  vessel  and  receptacle  afore- 
said, was  about  to  be  reached  and  was  reached,  so  that  the 
plaintiff  might  have  a  reasonable  opportunity  to  adopt  such 
measures  as  he  should  think  proiier  to  protect  himself  from  said 
particles  so  being  hurled  and  thrown  and  spattered  from  and 
out  of  said  vessel  or  receptacle,  the  said  particles  of  said  sub- 
stance as  aforesaid  were  then  and  there  hurled  and  thrown 
and  did  fly  and  spatter  from  and  out  of  said  vessel  and  recep- 
tacle aforesaid  around  and  against  the  plaintiff  and  into  the 
eye  of  the  plaintiff  without  the  plaintiff  having  a  reasonable 
opportunity  to  adopt  and  without  having  adopted  such  meas- 
ures as  he  might  deem  proper  to  protect  himself  from  said 
particles  so  being  hurled  and  thrown  and  spattering  and  flying 
from  and  out  of  said  vessel  and  receptacle  as  aforesaid. 

2.  And  the  plaintiff  further  avers  that  it  then  and  there 
was  the  usage  and  custom  of  the  defendant  that  whenever  the 
time,  point  or  stage  when  said  substances  would  be  so  hurled 
and  thrown  and  would  fly  and  spatter  from  and  out  of  the  ves- 
sel and  receptacle  aforesaid  was  about  to  be  reached,  a  warning 
of  the  fact  that  said  time,  point  and  stage  was  apt  to  be 
reached  was  then  and  there  given  and  a  certain  whistle  was 
then  and  there  blown ;  that  the  plaintiff  then  and  there  knew 
of  said  custom,  and  relied  thereon  for  the  protection  of  him- 
self against  said  particles  so  being  hurled,  thrown  and  spat- 
tered from  and  out  of  said  vessel  and  receptacle  aforesaid ;  all 
of  which  facts  the  defendant  ought  to  have  known  and  knew ; 
and  that  it  then  and  there  became  and  was  the  duty  of  the 


PERSONAL   INJURIES  957 

said  defendant  to  have  notified  and  warned  the  plaintiff  that 
said  time,  point  and  stage  aforesaid  was  about  to  be  reached, 
and  to  have  blown  said  whistle  as  aforesaid  prior  to  the  reach- 
ing of  said  time,  point  and  stage  as  aforesaid,  so  as  not  to 
unnecessarily  endanger  the  life  and  limbs  of  the  plaintiff  and 
other  persons  then  and  there  so  engaged  as  aforesaid. 

Yet,  the  defendant  did  not  regard  its  duty  in  that  behalf, 
but  on  the  contrary  thereof  then  and  there  carelessly  and  negli- 
gently, and  contrary  to  said  usage  and  custom  aforesaid,  failed 
to  warn  and  notify  the  plaintiff"  as  was  usual  and  customary 
as  aforesaid,  and  failed  to  blow  said  whistle  as  aforesaid  prior 
to  the  reaching  of  said  time,  point  and  stage  aforesaid;  by 
means  and  in  consequence  whereof,  the  said  substances  so  being 
hurled,  thrown,  spattered,  and  flying  at  said  time,  point  and 
stage  aforesaid,  then  and  there  struck  upon  and  against  the 
body  and  limbs  of  the  plaintiff'  and  into  the  eye  of  the  plaintiff. 

By  means  and  in  conseciuence  whereof  the  sight  of  said  eye 
was  destroyed,  and  the  other  eye  severely  injured,  and  he  was 
otherwise  greatly  bruised,  hurt  and  wounded,  and  he  became 
therefrom  forever  crippled  and  diseased,  and  was  and  will  be 
sick,  sore  and  disordered  during  the  remainder  of  his  life,  dur- 
ing all  of  which  time  the  plaintiff  has  suffered  and  will  suffer 
great  pain  and  has  been  and  will  be  prevented  from  attending 
to  and  transacting  his  affairs  and  business;  and  by  means  of 
the  premises  the  plaintiff  was  forced  to  and  did  lay  out  divers 
sums    of    money,    and    incurred    divers    large    indebtedness, 

amounting  to,  to  wit,    ($....)   dollars,  in  and 

about  endeavoring  to  be  cured  of  his  wounds,  hurts  and  bruises 
as  aforesaid,  and  has  lost  and  will  lose  divers  great  gains  and 
profits  which  he  otherwise  would  have  acquired.  (To  the  dam- 
age, etc.) 

1565  Loading  and  unloading  cars,  car  shoved  without  warning, 
Narr.  (111.) 

For  that  whereas,  prior  to  and  on,  to  wit,  the  ....  day  of 

>  19 .  • ,  the company  was  possessed  of  and 

operating  large  steel  mills  at in  the  county  and  state 

aforesaid,  and  there  were  then  and  there  certain  railroad  tracks 
in  and  about  said  steel  mills  which,  with  the  consent  of  the 
defendant,  were  customarily  used  to  hold  cars  loaded  with 
material  for  said  steel  company,  and  which  were  there  unloaded 
by  said  steel  company,  through  its  servants  in  that  behalf,  and 
which  said  servants  while  unloading  said  cars  were  required  to 
be  on  and  about  said  cars  and  in  such  position  as  exposed  them 
to  great  danger  of  bodily  injury  in  the  event  of  other  cars 
being  shoved  against  the  cars  they  were  unloading  without 
timely  warning  to  them ;  all  of  which  facts  the  plaintiff  alleges 
the  defendant  knev\',  or  by  the  exercise  of  ordinary  care  in  that 
behalf  could  have  known. 


958  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

And  the  plaintiff  further  alleges  that  defendant  by  virtue 
of  an  agreement  or  understanding  between  it  and  said  steel 
company  was  accustomed  to  deliver  cars  to  and  haul  cars  away 
from  said  mills  for  said  steel  company  and  to  switch  cars  in  and 
about  said  tracks,  and  at  the  time  and  place  aforesaid  there 
was  a  certain  car  loaded  with  material  for  said  steel  company 
standing  on  one  of  said  tracks  for  the  purpose  of  being  there 
unloaded  by  said  steel  company;  that  he  was  then  and  there 
employed  by  said  steel  company  and  in  the  discharge  of  his 
duty,  and  while  he  was  exercising  ordinary  care  and  caution 
for  his  own  safety,  he  was  then  and  there  upon  said  standing 
car  engaged  in  unloading  it  for  said  steel  company,  and  was  in 
such  a  position  upon  said  car  that  he  was  likely  to  be  injured 
if  the  other  cars  were  shoved  against  said  car  without  warn- 
ing to  him;  that  the  defendant  without  his  knowledge  was  then 
and  there  about  to  shove  certain  other  cars  against  said  stand- 
ing car;  and  that  by  reason  of  the  premises  it  then  and  there 
became  and  was  the  duty  of  the  defendant  to  exercise  ordinary 
care  toward  learning  if  any  one  was  engaged  in  unloading  said 
standing  car,  and  if  so  to  warn  such  person  that  it  was  about 
to  shove  other  cars  against  said  car,  and  that  if  it  had  exer- 
cised such  care  it  could  have  learned  that  he,  the  plaintiff,  was 
so  engaged  in  unloading  said  car  and  could  have  learned  of  his 
said  position  of  danger ;  but  that  the  defendant,  not  regarding 
its  said  duty,  and  in  utter  violation  thereof,  wrongfully  and 
negligently  failed  and  neglected  to  exercise  ordinary  care  for 
the  purpose  aforesaid;  and  as  a  result  thereof  did  not  learn 
that  plaintiff  was  engaged  in  unloading  said  car,  or  give  him 
any  warning  that  it  was  about  to  shift  other  cars  against  said 
standing  car;  and  as  a  result  thereof  plaintiff,  through  no  want 
of  ordinary  care  on  his  part  did  not  know  or  learn  that  said 
other  cars  were  about  to  be  shoved  against  said  standing  car 
which  he  was  engaged  in  unloading;  that  defendant  then  and 
there  negligently  shoved  said  other  cars  violently  against  said 
car  which   plaintiff  was  so   unloading   as   aforesaid   without 
warning  to  him  and  he,  by  the  compact  or  collision  of  said  cars 
and  the  car  which  he  was  engaged  in  unloading  as  aforesaid, 
was  thereby  then  and  there  thrown  down  upon  the  track  there 
and  the  wheels  and  certain  parts  of  said  cars  then  and  there 
passed  over  his  left  leg,  thereby  so  crushing  and  mangling  his 
said  leg  that  it  became  necessary  to  amputate  the  same  and  it 
was  amputated,  and  he  thereby  then  and  there  sustained  (De- 
scribe injuries,  loss  and  damage  in  detail). 

1566  Loading  and  unloading,  supports  removed,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of , 

19..,  at  the  county  aforesaid  the  defendants  were  dealers  in 
lumber  and  in  said  business  necessarily  employed  workmen, 
laborers  and  servants ;  that  R  was  then  and  there  employed  by 


PERSONAL  INJURIES  959 

said  defendants  as  a  laborer  and  workman  in  a  certain  lumber 

yard  of  the  defendants  in  the  city  of ,  to  assist  in 

unloading  lumber  from  railroad  cars ;  that  on  the  day  and  year 
aforesaid,  at  the  county  aforesaid,  the  said  R  and,  to  wit,  six 
other  persons  similarly  employed,  were  engaged  in  the  work 
of  the  said  defendants,  and  the  said  R  and  said  other  persons 
were  then  and  there  all  under  the  orders  of  one  J,  a  foreman  of 
the  said  defendants,  and  were  all  bound  to  obey  the  orders  of 
said  foreman  in  all  the  details  of  said  work ;  that  the  said  fore- 
man then  and  there  ordered  the  said  R  and  certain  of  said  per- 
sons, employees  and  servants  of  the  said  defendants,  as  afore- 
said, to  unload  a  certain  car  then  and  there  loaded  with  lumber 
which  said  lumber  was  then  and  there  held  in  place  on  said 
car  by  certain  sticks,  standards  or  stauncheons  that  had  been 
and  were  placed  there  to  assist  in  holding  said  lumber  on  said 
car ;  that  he,  the  said  R,  then  and  there,  in  compliance  with  the 
said  order  of  the  said  foreman,  proceeded  with  all  due  care  and 
diligence  to  assist  in  unloading  said  car,  and  while  the  said 
R  was  so  doing,  he,  the  said  foreman,  ordered  the  said  R  and 
certain  other  of  said  persons  employees  of  the  said  defendant 
to  take  out,  to  wit,  four  of  said  sticks  on  one  side  of  said  car, 
leaving,  to  wit,  two  of  said  sticks  still  remaining  on  said  one 
side  of  said  car ;  that  thereupon  and  after  said  four  sticks  had 
been  so  removed  as  aforesaid,  he,  the  said  foreman,  then  and 
there  ordered  R  and  certain  other  of  said  workmen  and  serv- 
ants to  move  said  car  while  he,  the  said  R,  was  near  the  same 
and  was  working  at  unloading  the  same  as  aforesaid. 

And  the  plaintiff  avers  that  the  said  foreman  carelessly  and 
negligently  by  his  order  aforesaid  first  above  mentioned  caused 
too  many  of  said  sticks  to  be  removed  and  carelessly  and  negli- 
gently by  his  said  order  secondly  above  mentioned  caused  said 
•car  to  be  moved  as  aforesaid  while  said  lumber  was  not  suffi- 
ciently held  in  place  by  a  sufficient  number  of  said  sticks  or 
standards;  that  by  reason  of  the  carelessness  and  negligence 
aforesaid  of  the  said  defendants  by  their  said  foreman,  who 
was  then  and  there  and  in  that  behalf  acting  as  the  agent  of 
the  said  defendants,  and  without  any  fault  or  negligence  of  the 
said  R,  and  by  reason  of  the  removal  of  said  sticks  and  the 
moving  of  said  car,  the  said  lumber  then  and  there  fell  off  said 
car,  and  fell  on  the  said  R,  and  caused  his  death. 

And  the  plaintiff  further  avers  that  the  said  R  had  then  and 
there  been  employed  in  said  business  a  short  space  of  time, 
to  wit,  one  hour,  next  prior  to  said  injury,  and  was  wholly 
without  experience  in  the  matter  of  unloading  lumber,  of  which 
ignorance  and  inexperience  of  the  said  R  the  said  defendants 
and  the  said  foreman  then  and  there  had  notice.  And  so  the 
plaintiff  says,  that  by  the  mere  carelessness,  negligence  and 
improper  conduct  of  the  said  defendants  by  their  said  fore- 
man as  aforesaid,  and  without  any  negligence  or  fault  of  the 
said  R,  he,  the  said  R,  was  killed  as  aforesaid ;  that  said  injury 


960  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

was  not  caused  by  any  act  or  thing  incident  to  the  said  R's 
employment  as  a  servant  of  the  defendant  as  aforesaid,  nor 
by  the  negligence  of  any  fellow-servant  of  the  said  K;  that 
the  said  R  left  him  surviving  the  plaintiff,  his  widow,  and  the 

following  named  children  as  his  next  of  kin,  to  wit : 

,  and  that  by  means  of  his  death  she  has  been 

deprived  of  her  means  of  support,  and  the  said  children  have 
been    deprived    of    their    means    of    support    and    education. 
(Proffer  letters  of  administration) 
Wherefore,  etc. 

1567  Loading-  and  unloading-,  switch  engine  run  into,  Narr. 
(111.) 

For  that  whereas,  on,  to  wit,  the day  of , 

10.  .,  at,  etc.,  the  defendant,  a  eorjjoi-ation,  etc.,  owned  and 
possessed,   and   controlled    a   certain    railroad,    and   a   certain 

switch  and  side-track  at  said  village  of ,  and  also  a 

certain  locomotive  engine,  and  certain  cars  in  and  about  the 
said  railroad  of  said  defendant  and  its  said  side-track  and 

switch  at  said  village  of ;  that  it  has  been,  for 

a  long  time,  and  was,  on  said day  of , 

19.  .,  (while  still  in  possession  and  control  of  said  railroad  cars, 

side-track  and  switch  at  said ,)  the  custom  of 

said  defendant  by  its  agents,  servants  and  employees,  to  place, 
and  it  did  so,  as  aforesaid,  at  divers  times,  before,  and  on  the 
day  aforesaid,  place  loaded  cars  on  its  said  side-track  and 
switch;  that  it  was  then  and  there  in  the  custom  of  allowing 
and  directing,  and  did  allow  and  direct  (while  still  being  in 
possession  and  control  of  said  railroad  ears  and  side-track),  the 
person  or  persons  whose  freiglit  or  loads  in  and  ui)on  said  cars 
(so  placed  on  side-track  as  aforesaid),  were,  or  to  whom  said 
freight  or  loads  belonged,  to  enter  upon  said  side-track  and 
said  cars  so  placed,  as  aforesaid,  and  with  their  servants  and 
emploj'ces,  to  then  and  there  unload  and  draw  away  the 
freight  or  loads  of  said  cars  so  placed,  as  aforesaid,  on  said 
track ;  that  it  is  and  for  a  long  time  past  has  been,  and  on, 

etc.,  to  wit,  said   day  of  ,  19..,  was  the 

custom  of  said  defendant  with  its  agents,  servants  and  em- 
ployees in  charge  of  a  certain  locomotive  engine  and  cars 
belonging  to  or  under  the  control  of  said  defendant,  to  dis- 
charge, switch,  or  place  loaded  cars  on  said  side-track  and 

switch  from  the  main  track  of  said  defendant,  at  said , 

and  also  in  the  same  manner  to  remove  unloaded  empty  cars 
from  said  track  and  switch  on  to  the  main  tracks  aforesaid; 
and  at  such  time  when  the  said  work  of  switching  or  placing 
said  loaded  cars  on  said  side-track  or  switch,  and  removing  said 
unloaded  or  empty  cars  from  said  side-track  or  switch  as  afore- 
said, was  completed,  with  its  said  servants,  agents  and  em- 
ployees, to  withdraw  or  remove  said  locomotive  engine  from 


PERSONAL  INJURIES  961 

said  side-track  or  switch  to  the  main  track  aforesaid;  and 
thereupon,  to  permit  and  allow  the  owner  of  freight  on  said 
loaded  cars  by  his  or  their  agents,  servants  or  employees  to 
enter  upon  said  loaded  cars  and  said  side-track  and  remove 
such  freight  as  aforesaid. 

And,  plaintiff  avers  that,  on,  etc.,  to  wit,  the  said 

day  of ,  19. .,  the  said  defendant,  by  its  said 

servants,  agents  and  employees  did  so  as  aforesaid,  switch  or 
place  loaded  cars  on  said  switch  or  side-track  and  remove  un- 
loaded or  empty  cars  therefrom,  and  by  its  said  servants, 
agents  and  employees,  did  remove  said  locomotive  engine  from 
said  side-track. 

And  plaintiff  avers  that  thereupon  the  said , 

in  his  life  time,  on,  etc.,  to  wit,  said day  of 

,  19.  .,  with  the  knowledge,  approval  and  consent 

of  said  defendant,  and  having  been  first  given  to  understand 
by  the  said  servants,  agents,  and  employees  of  said  defendant, 
that  said  locomotive  engine  and  said  cars  would  not  again  be 
run  on  said  switch  or  side-track  on  that  day,  went  and  entered 
upon  a  certain  loaded  car  then  standing  upon  said  switch  or 
side-track  aforesaid  to  unload  the  freight  then  upon  said  car, 
with  all  due  care  and  caution ;  and  while  exercising  due  care 
on  his  part,  and  being  the  agent  and  servant  of  the  owner  of 
said  freight,  commenced  unloading  said  car;  and  while  so 
employed  and  while  exercising  due  care  on  his  part,  the  said 
defendant,  by  its  said  agents,  servants  and  employees  afore- 
said, having  the  management  and  control  of  said  locomotive 
engine  and  cars,  and  while  working  in  the  line  of  their  employ- 
ment as  such  servants,  agents  and  employees,  wrongfully  and 
negligently,  and  without  any  warning  or  signal,  and  without 
ringing  any  bell  or  sounding  any  whistle  on  said  locomotive 
engine,  drove  the  said  locomotive  engine  upon  and  against  the 
cars  which  were  at  that  time  on  the  same  side  track  with  the  car 

in  which  the  said   ,  deceased,  was  in  his  life 

time,  so  as  aforesaid  employed,  and  thereby  drove  said  cars 

upon  and  against  the  said  car  upon  which  said 

was    employed    as    aforesaid,    with    great    force,    speed    and 

violence,  and  then  and  there  and  thereby  the  said 

was  precipitated  and  fell  between  and  in  under  the  cars  so  as 
aforesaid,  standing  upon  the  side-track  of  the  said  defendant, 

said  cars  running  upon  and  over  said ,  and  said  .... 

was  then  and  there  and  thereby  greatly  bruised, 

mangled  and  hurt,  by  reason  of  which  said  injuries  the  said 

,  did,  on,  etc.,  to  wit,  said day  of 

,  etc.,  at  said  village  of ,  die. 

And  the  plaintiff  avers  that  the  railroad  of  the  defendant  so 

causing  the  death  of  said aforesaid  was  used 

in  the  said  county  of  (Add  last  two  para- 
graphs of  Section  1495). 


962  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

1568  Loose  rail,  Narr.  (W.  Va.) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the 

day  of ,  19-  •,  in  the  county  and  state  aforesaid, 

the  said  defendant  was  lawfully  possessed  or  was  the  owner 
of   a   certain   large   car   manufacturing   plant   and   property, 
being  so  possessed  thereof  as  aforesaid,  and  was  then  and  there 
engaged  in  making,  manufacturing,  constructing  and  erectnig 
and  putting  together  railroad  cars  upon  the  aforesaid  property, 
and  in  the  use  and  manufacturing,  constructing  and  erecting 
the  aforesaid  railroad  cars  at  said  plant  as  aforesaid,  and  in 
connection  with  the  aforesaid  manufacturing  of  said  railroad 
cars,  said  defendant  used  a  certain  lot  of  railroad  tracks  and 
switches  in  operating  the  aforesaid  car  manufacturing  plant, 
and  said  defendant  handled  a  large  lot  of  lumber  and  a  large 
lot  of  iron  of  various  and  divers  dimensions  in  the  operation 
and  construction  of  manufacturing  the  aforesaid  railroad  cars 
and  in  moving  the  aforesaid  iron  and  lumber  as  aforesaid  to 
the  various  parts  of  their  plant,  they  used  the  aforesaid  rail- 
road tracks  and  railroad  switches  and  operated  cars  of  divers 
dimensions   upon   the   aforesaid   railroad   tracks   or   railroad 
switches  or  side  tracks  as  aforesaid;  and  it  then  and  there 
became  and  was  the  duty  of  said  defendant  to  see  that  the 
aforesaid  railroad  tracks  and  railroad  switches  and  side  tracks, 
were  properly  constructed  and  properly  fastened  down  and 
made  safe  and  secure  in  every  respect  and  that  the  railroad 
cars  of  various  dimensions  as  aforesaid,  were  safe  and  secure 
in  every  respect,  to  be  used  by  the  plaintiff  and  other  employees 
of  said  defendant ;  and  it  became  the  duty  of  said  defendant  to 
use  due  and  proper  care  and  caution  that  said  plaintiff  and  all 
other  employees  should  be  provided  with  good,  proper,  safe  and 
suitable  machinery  and  appliances  to  be  used  by  plaintiff  and 
other  employees  in  said  employment  as  aforesaid,  and  that  the 
said  plaintiff  should  be  secure  and  safe  in  all  respects  in  his 
employment  for  said  defendant  and  all  other  employees  should 
be  safe  and  secure  in  their  said  work  for  said  defendant,  from 
any  injury  incident  thereto,  against  which  ordinary  care  and 
skill  could  have  availed,  while  engaged  for  defendant  in  said 
work;  but,  said  defendant  wholly  disregarded  and  neglected 
its  duty  in  that  behalf,  and  did  not  use  proper  care  and  cau- 
tion that  said  plaintiff  and  other  employees  should  be  provided 
with  good,  proper,  safe  and  suitable  machinery  and  appliances 
to  be  used  by  said  plaintiff  in  his  said  employment  as  afore- 
said, and  that  the  said  plaintiff  should  be  secure  and  safe  in 
all  respects  in  his  employment,  in  which  ordinary  care  and 
skill  could  have  availed  while  said  plaintiff  was  engaged  for 
said  defendant  in  said  work  from  any  injury  incident  thereto ; 
and  on  the  contrary,  said  defendant  then  and  there  provided 
for  and  suffered  to'be  used  by  said  plaintiff  in  and  while  said 
plaintiff  was  engaged  in  the  work  of  manufacturing,  construct- 


PERSONAL  INJURIES  963 

ing,  erecting  and  building  railroad  cars  for  said  defendant,  as 
aforesaid,  a  certain  insecure  and  unsafe  and  unsuitable  switch 
or  railroad  track  with  the  rails  placed  upon  said  railroad  track 
in  an  insecure  and  unsafe  condition,  in  this,  to  wit,  they  were 
not  nailed  to  the  ties,  and  the  ties  used  were  unsafe  and  inse- 
cure ties  and  the  said  plaintiff  was  directed  by  one  of  the 
defendant's  officers  or  agents  then  in  charge  of  said  defendant's 
plant,  to  push  a  certain  railroad  car  or  truck,  used  in  moving 
the  aforesaid  lumber  and  iron  as  aforesaid  over  one  of  the 
aforesaid  railroad  tracks  or  switches,  owned,  used  and  operated 
by  said  defendant  in  constructing,  erecting  and  manufacturing 
said  railroad  cars  as  aforesaid  for  handling  material,  and  while 
said  plaintiff  was  unaware  that  it  w^as  unsafe  and  in  an  insecure 
conditon ;  that  he  was  careful  and  cautious  in  pushing  said  rail- 
road car  as  aforesaid  as  directed  by  said  defendant's  officer  or 
agent  then  and  there  in  charge  so  to  do;  and  that  he  had  no 
knowledge  or  information  that  the  aforesaid  railroad  track  was 
in  an  unsafe  and  insecure  condition,  or  was  loose  and  unnailed 
or  in  improper  shape  or  was  unsuitable  to  be  used  for  the  work 
which  said  plaintiff  was  directed  to  use  it  for  by  said  defend- 
ant's officer  or  agent  as  aforesaid. 

And  plaintiff  further  alleges  and  charges  that  the  aforesaid 
railroad  track  was  in  an  unsafe  and  insecure  condition  and 
when  said  car  or  truck  run  over  the  aforesaid  track,  then  and 
there  owned  and  operated  by  said  defendant,  said  rail  being 
loose,  flew  up  and  hit  said  plaintiff  between  the  legs,  with  great 
force  and  violence,  with  such  great  force,  that  said  plaintiff 
was  ruptured  by  reason  of  the  lick  received  from  said  rail  as 
aforesaid,  and  was  greatly  injured,  and  said  plaintiff  was  hurt 
internally  and  other  members  of  his  body  were  broken,  bruised, 
mashed  and  crushed  and  said  plaintiff  was  greatly  bruised, 
mashed  and  hurt  and  injured  by  means  of  the  premises  as 
aforesaid ;  that  said  plaintiff  became  and  was  sick,  sore  and 
lame  and  disabled  and  remained  so  for  a  long  space  of  time 
and  will  continue  to  remain  during  all  of  his  natural  life  and 
is  permanenth'"  crippled  and  still  is  injured  and  will  remain  a 
cripple  during  the  remainder  of  his  natural  life,  unable  to  work 
or  perform  labor;  that  said  plaintiff  suft'ered  great  pain  and 
great  mental  anguish  and  was  and  has  been  prevented  from 
transacting  and  attending  to  his  lawful  and  necessary  affairs 
and  business,  and  was  deprived  of  great  gains,  profits  and  ad- 
vantages of  which  he  might  otherwise  and  would  have  derived 
and  acquired  had  it  not  been  for  defendant's  carelessness;  that 

said  plaintiff  has  spent  large  sums  of  money,  to  wit, 

dollars  to  effect  a  cure  of  the  aforesaid  injury  received  at  the 
hands  of  the  defendant ;  that  said  plaintiff  will  have  to  expend 
large  sums  of  money  in  the  future  for  treatment ;  and  plaintiff 


964  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

says  that  he  has  been  damaged  in  the  sum  of dol- 
lars.   He  therefore  brings  this  suit.^*^ 

1569  Man-hole  frame  on  pavement,  Narr.  (Md.) 

For  that  the  plaintiff  on  or  about  the day  of  ...... 

,  19.  .,  while  working  along  the side 

of ,  a  public  higliway  in  the  city  of 

stumbled  and  fell  over  a  large  iron  nuin-hole  frame  lying  on 

the  pavement  of  said side  of , 

the  existence  and  location  of  which  this  plaintiff  was  unaware, 
and  thereby  received  injuries,  dangerous  and  permanent,  on 
and  about  her  right  leg  between  the  knee  and  foot,  her  head 
was  badly  bruised,  her  system  generally  shocked,  and  she  was 
caused  to  suti'er  excruciating  pain  and  great  mental  anguish; 
that  she  was  thereby  and  has  been  since,  caused  to  be  confined 
to  her  room  and  has  been  prevented  from  attending  to  her 
household  avocations,  as  well  as  that  of  seamstress;  that  she 
has  been  put  to  great  expense  for  medical  attention  and  medi- 
cine;  and  that  other  great  and  permanent  wrongs  and  injuries 
have  been  thereby  sustained  by  her,. 

That  the  said  plaintiff,  at  the  time  of  the  happening  of  the 
acts  aforesaid,  was  exercising  due  care  and  caution  on  her  part 
but  that  the  said  injuries  were  occasioned  by  the  negligence, 
default  and  want  of  care  on  the  part  of  the  defendants,  their 
officers,  agents  and  employees,  in  placing  said  iron  man-hole 
frame  upon  the  pavement  aforesaid  and  in  permitting  the  same 
to  i-emain  there  for  a  long  space  of  time,  and  in  failing  to  pro- 
vide any  light  or  signal  of  any  kind  whatsoever,  marking  said 
iron  man-hole  frame  or  warning  pedestrians  of  the  location  of 
the  same.    And  the  plaintiff  claims,  etc. 

1570  Manufactured  articles,  action 

A  manufacturer  is  liable  for  injuries  which  result  to  third 
persons  by  placing  upon  the  market  for  sale  of  a  highly  danger- 
ous article,  without  notifying  the  public  by  proper  label,  or 
otherwise,  of  its  dangerous  character.^^^ 

•     MINE  INJURIES 

1571  Mining  act,  nature  and  scope 

The  owners,  operators,  and  managers  of  coal  mines  are  liable 
under  the  Illinois  Mining  act  for  personal  injuries  resulting 
from  all  dangerous  conditions  in  coal  mines  which  endanger 

185  Denny  v.  American  Car  &  Mich.  293,  295  (1907);  Clement  v. 
Foundry  Co.,  69  W.  Va.  405  (1911).      Crosby  &  Co.,  157  Mich.  643  (1909). 

186  Clement  v.   Crosby  &  Co.,  14S 


PERSONAL   INJURIES  965 

life,  limb  or  health  of  the  persons  working  in  them,  notwith- 
standing the  failure  of  the  mine  examiner  to  properly  mark  or 
indicate  the  particular  dangerous  condition  in  his  record,  or  to 
report  the  same  to  the  mine  manager.^ s'^  This  liability  extends 
to  a  person  who  is  injured  as  a  result  of  a  conscious  or  wilful 
failure  to  perform  the  statutory  duty  to  have  the  mine  examined 
and  to  have  the  dangerous  places  designated  by  statutory  marks. 
If  the  mine  is  in  a  dangerous  condition  the  examination  and  the 
marking  of  the  mine  are  peremptory  and  must  be  made  regard- 
less of  the  mine  owner's  or  operator's  opinion  of  whether  the 
examination  is  or  is  not  necessary. ^^^  The  mere  failure  to  exer- 
cise ordinary  care,  or  mere  negligence,  creates  no  liability  on 
the  part  of  the  operator  of  the  mine  under  the  statute.  The  vio- 
lation of  the  statute  must  be  conscious  or  wilful. ^^''^  The  mere 
failure  of  the  mine  inspector  to  go  through  the  useless  operation 
of  re-marking  or  re-tracking  of  his  old  marks  of  the  dangerous 
places  in  the  mine,  is  no  violation  of  the  statute,  when  the  marks 
of  danger  which  had  been  previously  placed  are  plainly  visible 
at  the  time  of  a  re-visit  to  the  mine.^^^  Since  1911,  a  mine  exam- 
iner's duty  to  make  examinations  is  limited  to  the  underground 
working  of  the  mine. 

In  Illinois,  the  mine  owner  or  operator  is  liable  for  personal 
injuries  resulting  from  a  wilful  failure  of  the  mine  manager  or 
mine  examiner  to  perform  any  duty  required  by  the  ]\Iining  act, 
the  mine  manager  and  mine  examiner  not  being  considered  fel- 
low-servants of  a  miner.^^2  Jq  "West  Virginia  the  mine  operator 
or  agent  is  regarded  as  having  fully  discharged  his  statutory 
duties  by  employing  a  competent  mine  boss  and  as  being  exempt 
from  liability  for  any  injury  resulting  to  a  miner  from  the  fail- 
ure of  the  mine  boss  to  observe  statutory  requirements  imposed 
upon  him.^^^ 

An  action  for  personal  injuries  brought  under  the  Mining  act 
is  not  penal  in  its  nature. ^^^ 

187  Mertens  v.  Southern  Coal  &  i9i  Rogers  v.  St.  Louis-Oarterville 
Mining  Co.,  235  111.  540,  544,  545  Coal  Co.,  254  111.  104,  108  (1912); 
(1908).  Laws  1911,  p.  388  (111.). 

188  Aetitus  V.  Spring  Valley  Coal  192  Henrietta  Coal  Co.  v.  Martin, 
Co.,  246  111.  32,  38  (1910).  221  111.  460,  466  (1906). 

i»9  Cook  V.  Big  Muddy-Cart erville  i93  Williams    v.    Thacker    Coal    & 

Mining  Co.,  249  111.  41,  51    (1911).  Coke  Co.,  44  W.  Va.  599,  605  (1898). 

180  Kilduff    V.    Consolidated    Coal  is*  Davis  v.  Illinois  Collieries  Co., 

Co.,  255  111.  617,  620  (1912).  232  111.  284,  291   (1908). 


966  ANNOTATED    FOKMS   OF    PLEADING    AND    PKACTICE 

1572  Parties 

All  persons  who  are  employed  in  the  mine,  such  as  engineers, 
firemen,  pumpmen,  shot-firers,  drivers,  and  other  workmen  and 
employees  are  within  the  protection  of  the  daily  inspection  pro- 
vision of  the  Mining  act.i»^  in  mines  in  which  coal  is  blasted 
with  more  than  two  pounds  of  powder  Tor  any  one  blast,  and  in 
mines  in  which  gas  is  generated  in  dangerous  (|uantities,  a 
shot-firer  is  charged  with  the  duty  of  determining  for  himself 
whether  the  shot  is  prepared  in  a  practical  and  workmanlike 
manner,  and  his  judgment  is  conclusive  upon  this  question.i«« 
But  whether  a  person  injured  in  a  mine  was  or  was  not  a  shot- 
firer  is  a  question  of  fact,  in  the  absence  of  clear  proof  to  the 
contrary.  A  miner's  certificate  of  competency  is  merely  evi- 
dence that  the  holder  possesses  the  qualitications  to  do  the  work 
of  miners,  and  does  not  show  that  he  possesses  the  practical 
experience  re(iuired  of  a  shot-firer.' '^^ 

A  wilful  failure,  refusal,  or  neglect  to  comply  with  the  pro- 
visions of  the  Short-fires  act  of  1907  resulting  in  a  fatal  injury, 
gives  no  right  of  action  to  the  widow  of  the  person  thus 
injured. '^8  Persons  who  are  not  exposed  to  aiiy  dangers  or 
perils  peculiar  to  the  mining  trade  or  business,  as  those  who 
are  engaged  in  erecting  and  repairing  buildings  and  repairing 
cars  for  a  mining  company,  are  not  operative  coal  miners  within 
the  meaning  of  the  :Mining  act,  and  are  not  entitled  to  its  pro- 
tection.i'-^»  An  action  under  the  Mining  act  may  be  instituted  by 
the  widow,  if  there  is  one,  by  the  lineal  heirs  or  adopted  children, 
if  there  is  no  widow,  or  by  any  person  who  was  dependent  for 
support  upon  the  person  that  was  killed,  if  there  is  neither 
widow,  lineal  heirs  nor  adopted  children.^oo 

1573  Declaration  requisites 

A  count  upon  section  21  of  the  Illinois  Mining  act  must  aver 
that  no  place  of  refuge  of  the  required  size  was  cut  in  the  side 

losBrennen  v.   Chicago  &   Carter-  in     1909     (Hurd's    Stat.     1911,    p. 

ville    Coal    Co.,    241     111.    610,    619  1566). 

(1909)-  Hougland  v.  Avery  Coal  &  iss  HoUingsworth     v.     Chicago     & 

Mining'Co.,  246  111.  609,  614  (1910).  Carterville  Coal  Co.,  243  111.  98,  106 

i96Kulvie  V.  Bunsen  Coal  Co.,  253  (1909). 

Ill   386,388  (1912);  Short-firer 's  act  loo  Rogers  v.   St.  Louis-Carterville 

of  1905  as  amended  in  1907  (Hurd's  Coal  Co.,  254  111.  lOS,  110. 

Stat.  p.  1564).  200  Cook  v.  Big  Muddy-Carterville 

197  Knlvie  v.  Bunsen  Coal  Co.,  253  Mining  Co.,  supra. 
lU.  388,  390 ;  Act  of  1908  as  amended 


PERSONAL  INJURIES  967 

of  the  wall  of  the  mine  at  the  working  place  where  the  miners 
were  obliged  to  be  or  to  pass  to  and  from  their  work  while  in 
the  performance  of  their  duties.^oi  a  count  which  is  based 
upon  section  33  of  the  Mining  act  must  allege  wilful  injury  on 
the  part  of  the  defendant,  but  it  need  not  state  that  the  plain- 
tiff had  exercised  due  care  or  that  he  was  not  guilty  of  contribu- 
tory negligence.2*^- 

1574  Collision,  Narr.  (Dl.) 

For  that  whereas  the  defendant,  a  corporation  of  the  state  of 

Illinois,  on,  to  wit,  the day  of ,  19.., 

was,  and  for  several  years  prior  thereto  had  been,  engaged  in 

the  business  of  mining  and  shipping  coal  at , 

to  wit,  at  the  county  of ,  aforesaid,  and  being  so 

pugaged  then  and  there  had  in  its  employ  for  carrying  on  of 
said  business  divers  persons,  including  the  plaintiff. 

And  the  plaintiff'  avers  that  it  was  the  duty  of  said  defend- 
ant to  prescribe  and  have  proper  rules  and  regulations  for  the 
conduct  of  its  said  business,  and  to  properly  make  the  same 
known  to  its  said  employees,  clerks,  foremen,  superintendent 
and  others  in  its  employ,  and  to  properly  enjoin  and  enforce 
the  observance  of  such  rules  and  regulations  for  the  reasonable 
and  proper  protection  of  the  plaintiff  from  injury  whilst  en- 
gaged in  said  employment. 

Yet,  the  said  defendant,  on,  to  wit,  the day  of 

,  19.  .,  and  before  said  date,  at,  to  wit,  the  county 

aforesaid,  not  regarding  its  duty,  neglected  and  failed  to  pro- 
vide such  proper  rules  or  regulations  or  to  properly  make  the 
same  known  to  its  said  employees,  clerks,  foremen  or  superin- 
tendent, or  to  properly  enjoin  or  enforce  upon  its  said  employ- 
ees the  observance  of  such  rules  or  regulations,  whereby  and 
by  reason  of  such  neglect  the  plaintiff,  on,  to  wit,  the  day  and 
year  and  at  the  county  aforesaid,  whilst  with  due  care  engaged 
in  the  work  of  defendant  loading  with  coal  a  certain  car  which 
had  been  placed  and  was  standing  on  a  certain  track  at  a  point 
alongside  of  a  certain  chute,  certain  other  employees,  not  fellow- 
servants  with  the  plaintiff,  but  engaged  in  the  work  of  the 
defendant,  switching  cars,  allowed  a  certain  car  or  cars  to  col- 
lide with  and  jam  against  the  said  ear  which  the  plaintiff  was 
helping  to  load  as  aforesaid,  thereby  forcing  said  last  men- 
tioned car  against  the  plaintiff  and  crowding  and  crushing  him 
against  a  certain  platform  and  thereby  then  and  there  seriously 
and  permanently  injuring  him  as  is  hereinafter  alleged. 

201  Cook  V.  Bie  Muddy-Carterville  202  Bradley  v.  CTiicago-Virden  Coal 

Mining  Co.,  249  111.  48;  Sec.  21,  Min-      Co.,  231  111.  622,  627  (1908). 
ing  act. 


968  ANNOTATED   FORMS  OP   PLEADING    AND   PRACTICE 

2.  For  that  whereas,  also,  the  plaintifY  and  the  defendant 
being  engaged  as  in  the  first  count  st-t  forth,  it  was  the  duty  of 
the  defendant  to  provide  and  employ  such  number  of  persons 
as  were  reasonably  necessary  to  tlo  the  work  of  loading  coal 
and  switching  cars  with  reasonable  safety  against  accident  and 
against  injury  to  the  plaintift". 

Yet,  the  said  defendant,  on,  to  wit,  the   day  of 

,  19.  .,  at   ,  to  wit,  at  the  county 

aforesaid,  neglected  its  said  duty  in  that  reganl  and  thereby 
the  plaintiff,  who,  with  due  care  on  his  part  was  then  and  there 
helping  to  load  a  certain  car  which  was  standing  on  the  track 
at  a  point  opposite  to  a  certain  coal  chute,  was  unable  to  warn 
certain  other  of  defendant's  emi)h)yees  who  wt're  then  and 
there  switcliing  cars  for  said  defendant,  but  wiu)  were  not 
plaintiff's  fellow-servants,  that  he,  the  said  plaintitf,  was  thus 
helping  to  load  said  car  and  was  notwithstanding  the  use  of 
reasonable  care  on  his  part  in  a  dangerous  position  so  that  if 
said  car  should  be  moved  whilst  the  plaint itY  was  so  engaged 
and  thus  situated  he  might  be  killed  or  seriously  injured,  and 
by  reason  also  of  such  neglect  the  said  defendant's  emj)loyees, 
who  were  then  and  there  switcliing  cars  as  aforesaid,  could 
not  by  the  use  of  reasonable  care  discover  that  tiie  plaintiff  was 
in  a  position  to  be  seriously  hurt  if  other  cars  should  collide 
with  said  car,  whereby  and  by  means  of  which  said  neglect  the 
plaintiff",  who  was  thus  with  due  care  helping  to  load  said  car 
and  therefore  in  a  dangerous  position  was  seriously  and  per- 
manently injured  by  another  car  or  cars  then  and  there  being 
switched  as  aforesaid  coming  against  said  car  so  being  loaded 
and  forcing  said  car  last  mentioned  against  the  plaintiff  and 
crowding  and  crushing  iiim  against  a  certain  platform,  and 
thereby  then  and  there  seriously  and  permanently  injuring  him 
as  is  hereinafter  alleged. 

3.  For  that  whereas,  also,  the  defendant  being  engaged  as 
in  the  said  first  count  set  forth,  and  the  plaintiff  being  in  the 
employ  of  said  defendant  as  a  laborer,  it  was  the  duty  of  said 
defendant,  by  its  agents  and  foremen,  to  use  reasonable  care 
when  setting  the  plaintilf  to  work  not  to  unnecessarily  expose 
him  to  damage  or  injury. 

Yet,  the  said  defendant,  on,  to  wit,  the   day  of 

,  19. .,  at ,  to  wit,  at  the  county 

aforesaid,  neglected  said  duty,  and  a  certain  foreman  of  said 
defendant,  to  wit,  one ,  who  was  not  a  fellow- 
servant  of  the  plaintiff,  negligently  and  carelessly  ordered  and 
directed  the  plaintiff  to  tend  the  shutter  of  a  certain  coal  chute 
through  which  coal  was  then  and  there  being  or  about  to  be 
run  into  a  certain  car,  which  was  then  and  there  standing  on 
a  certain  track  at  a  point  opposite  to  said  chute ;  that  the  said 
foreman  then  and  there  knew,  or  by  the  use  of  reasonable  care 
would  have  known,  that  certain  other  cars  on  said  tracks  were 
being  switched  or  were  about  to  be  switched  and  that  unless 


PERSONAL   INJURIES 


969 


the  employees  of  said  company  who  were  doing  or  about  to  do 
said  switching  were  informed  that  the  plaintiff  was  thus  en- 
gaged tendin|  such  shutter  said  switchmen  woud  or  might 
mS  said  cars%ipon  and  against  the  car  which  the  plaintiff 
was  thus  helping  to  load  as  aforesaid,  and  thereby  injure  the 
plaintiff.    That  said  plaintiff  properly  and  with  due  care  obeyed 
said  order  and  whilst  he  was  with  due  care  attending  said 
chute  the  said  switchmen,  who  were  not   fellow-servants  ot 
the  plaintiff,  switched  a  certain  car  or  cars  upon  said  track  on 
which  the  car  being  loaded  as  aforesaid  stood,  and  said  cars 
so  switched  ran  with  great  force  against  the  said  car  so  being 
loaded  and  thereby  forced  and  jammed  the  car  last  aforesaid 
upon  and  against  the  plaintiff  and  then  and  there  crowded 
him  against  a  certain  platform  or  structure  with  such  force 
and  violence  as  to  then  and  there  seriously  and  permanently 
injure  him,  to  wit:  breaking  his  left  collar  bone    depressing 
his  chest  and  lungs,  and  forcing  his  eyes  from  their  sockets 
and  impairing  and  destroying  his  eyesight    and  doing  to  him 
other  injuries,  whereby  and  by  reason  whereof  the  plaintiff 
was  caused  to  suffer  and  still  suffers  great  pain  and  distress  ot 
body  and  mind,  and  whereby  he  has  been  and  still  is  disabled, 
sick  sore,  lame  and  disordered  and  is  prevented  from  pursuing 
his  isual  business  and  earning  and  receiving  his  usual  income 
as  a  laborer,  and  whereby  he  has  been  put  to  the  expense  ot, 
to  wit  dollars  in  employing  physicians  and  pur- 

chasing medicines  to  be  cured  of  said  injuries,  and  whereby 
it  will  be  necessary  to  continue  such  expense  hereafter,  to  the 
damage,  etc. 

1575  Coupling  cars,  Narr.  (W.  Va.) 

For  this,  that  heretofore,  to  wit,  on  the day  of  . . . . . . . ., 

19  and  for  sometime  previous  thereto,  the  said  defendant 
was  the  owner  and  operator  of  a  certain  «oal  mine  in  the  county 
aforesaid,  and  that  the  same  was  opened,  operated  and  mined 
by  means  of  a  main  drift  or  entry  running  into  the  said  mine 
with  side  entries  or  drifts  leading  therefrom,  and  that  in  said 
main  drift  or  entry  was  a  railway  over  which  loaded  and  empty 
cars  were  hauled  and  driven  into  and  through  the  said  mine, 

and  in  said  railway  at  a  distance  of ...•..••  feet  from  the 

mam  entry  of  said  mine  there  was  a  parting,  that  is  to  say,  the 
railway  track  running  along  said  main  entry  as  aforesaid  was 
converted  by  means  of  switches  into  two  tracks,  on  one  of 
which  the  cars  used  bv  the  said  defendant  in  operating  its  mine 
were  placed  when  the  same  were  empty ;  and  on  the  other  of 
which  tracks  the  cars  used  by  the  said  defendant  as  aforesaid 
were    placed    when    the    same    were    loaded,    which    parting 

extended  for  a  distance  of feet  along  said  main 

entry  where  it  was  converted  by  means  of  switches  into  one 
track  which  track  continued  along  said  main  entry ;  that  on 


970  ANNOTATED   FORMS  OF    PLEADING   AND   PRACTICE 

the  day  and  year  aforesaid,  the  plaintiff  at  the  special  instance 
and  request  of  the  said  defendant  becanu'  and  was  engaged  in 
the  employment  of  the  said  defendant  in  its  said  mine,  and 
that  as  part  of  his  duties  in  said  employment  he  was  ri'quired 
to  couple  and  uncouple  the  cars  used  by  the  said  defendant 
in  its  mine  as  aforesaid;  and  the  said  i)laintitf  says  that  on  the 
day  and  year  aforesaid  he  was  a  nu're  lad,  a  boy  of  tender 
years,  just  past  thirteen  years  of  age,  and  not  yet  fourteen 
years  old,  inexperienced  in  the  operation  and  dangers  of  the 
employment  in  which  he  w'as  engaged  by  the  said  defendant, 
and  wholly  and  entirely  incapable  of  comprehending  and 
understanding  the  dangers  and  hazards  incident  to  his  said 
employment;  and  the  plaintiff  says  that  no  caution  or  warn- 
ing whatsoever  was  given  to  him  as  to  hov;  said  work  should 
be  performed  with  reasonable  safety  to  life  and  limb. 

The  plaintiff  avers  that  the  said  employment  was  very  dan- 
gerous and  was  accompanied  with  great  risks  and  hazards 
beyond  the  comprehension  of  this  plaintiff  by  reason  of  his 
youth  and  inexperience,  even  though  he  had  been  fully 
instructed,  cautioned  and  wariu'd  as  to  the  dangers  incident 
to  his  said  employnu'iit ;  that  the  said  defendant,  well  knowing 
his  age,  inexperience  and  incapacity  to  comprehend  and  appre- 
ciate the  dangers  incident  to  his  employment,  and  well  know- 
ing that  he  could  not  comprehend  and  appreciate  any  instruc- 
tions given  to  him  in  regard  thereto,  even  if  such  instructions 
had  been  given,  on  the  day  and  year  aforesaid,  while  he  was  at 
his  post  of  duty,  taking  the  coupling  from  the  cars  used  by  the 
said  defendant  in  its  mine  as  aforesaid,  for  the  purpose  of 
handling  and  hauling  the  coal  mined  therefrom  as  aforesaid, 
wholly  disregarded  its  duty  to  the  said  plaintiff  and  wrong- 
fully, carelessly  and  negligently  caused  one  of  its  said  cars, 
which  was  being  taken  and  removed  from  one  point  to  another 
in  said  mine,  and  without  notice  or  warning  whatsoever  to  the 
said  plaintiff,  to  be  suddenly  dashed  with  great  force  and 
violence  against  and  upon  the  said  plaintiff",  and  against  and 
upon  the  cars  from  which  the  said  plaintiff"  was  so  removing 
and  coupling  as  aforesaid ;  and  by  reason  thereof  the  said 
plaintiff  was  caught  between  the  bumpers  of  the  said  cars, 
which  were  being  so  used  by  the  said  defendant  as  aforesaid, 
and  was  wounded,  bruised  and  injured  and  thereby  became 
sick,  sore,  lame  and  disabled  in  so  much  and  to  such  an  extent 
that  it  became  necessary  to  amputate  his  right  leg,  and  that  the 
same  w^as  amputated.  And  he  was  confined  to  his  bed  for  a 
long  space  of  time,  and  thereby  and  in  consequence  thereof 
he  suffered  great  pain  of  body  and  endured  and  suffered  great 
mental  anguish,  and  was  unable  to  do  any  work  for  a  long 

space  of  time,  to  wit,  from  the   day  of   ,  19.., 

thence  hitherto. 

The  plaintiff  says  that  the  defendant  wrongfully,  negligently 
and  unlawfully  engaged  and  employed  the  plaintiff  in  the  said 


PERSONAL  INJURIES  971 

position  iu  said  mine,  he  being  a  boy  of  tender  years,  without 
experience  in  mining  operation,  and  the  plaintiff  says  that  it 
became  and  was  the  duty  of  the  defendant  to  have  shown  and 
instructed  the  plaintiff  in  the  method  of  performing  his  duties 
incident  to  his  employment,  but  on  the  contrary  the  plaintiff 
says  that  the  said  defendant  wholly  failed  to  discharge  his 
duty  in  that  respect,  and  that  the  said  defendant  did  not  exer- 
cise due  and  reasonable  care  in  that  behalf,  but  on  the  con- 
trary negligently,  carelessly  and  wrongfuly  permitted  the 
plaintiff*  to  shift  for  himself;  to  take  all  risks  and  dangers 
incident  to  his  3'outh,  incapacity  and  inexperience  in  the  work 
which  he  was  engaged  to  perform  for  the  said  defendant  as 
aforesaid;  and  in  the  performance  of  which  he  sustained  the 
injury  of  which  he  herein  complains. 

The  plaintiff'  saA's  that  the  said  defendant  failed  and  refused 
to  discharge  any  of  the  said  several  duties  aforesaid,  Avhich 
he  owed  to  him,  the  plaintiff',  but  wrongfully  and  negligently 
failed  and  refused  to  do  so,  and  thereby  caused  to  him  the 
injury  aforesaid.  And  by  reason  thereof  the  said  plaintiff  has 
been  permanently  disabled,  injured,  lamed,  disfigured  and 
crippled  and  rendered  unfit  for  the  active  pursuits  and  occupa- 
tions of  life. 

Wherefore  and  by  means  of  the  premises  and  of  the  wrongs, 
grievances  and  injuries  hereinbefore  mentioned  and  set  forth, 
the  said  plaintiff'  has  sustained  damages  to  the  amount  of 
dollars.    And  therefore  he  sues.^^s 

1576  Dangerous  condition,  action 

The  operator  of  a  mine  is  liable  for  any  injury  sustained  in 
a  mine  from  a  live  wire,  for  the  reason  that  the  statute  covers 
all  dangerous  conditions  found  in  the  mine  whether  permanent 
or  temporary.-'^'* 

1577  Dang-erous  condition,  gob,  Narr.  (111.) 

For  that  whereas,  heretofore,  on,  to  wit,  the  ....  day  of 
,  19.  .,  the  defendant  was  in  possession  of  and  operat- 
ing a  certain  coal  mine  in  said  county  of   and 

state  of  Illinois,  known  as ,  that  said  coal  mine 

was  then  and  there  operated  by  means  of  a  perpendicular 
shaft,  and  certain  roadways  and  entries  were  driven  in 
said  mine  off  of  which  certain  rooms  were  turned  and  coal 
drawn  from  said  rooms  to  the  bottom  of  said  perpendicular 
shaft  b3'  mules  hitched  to  certain  cars;  that  in  said  mine  cer- 
tain men  were  employed  to  dig  coal  and  others  to  drive  the 

203  Ewing  V.  Lanark  Fuel  Co.,  65  Coal  Co.,  239  111.  457,  458,  459 
W.  Va.,  726  (1909).  (1909). 

204  Dunham     v.     Black     Diamond 


972  ANNOTATED   FORMS   OF    PLLLVDIXG    AND    PKACTICE 

mules  in  hauling  coal  from  said  rooms  to  the  bottom  of  said 
perpendicular  shaft,  all  of  whom  were  then  and  there  in  the 
employ  and  under  the  direction  of  said  defendant ;  that  on 
said  date  plaintiff  was  then  and  there  employed  in  said  mine 
as  a  mule  driver;  and  that  in  and  about  the  course  of  his 
employment  it  then  and  there  became  and  was  necessary  for 
him  to  be  on  a  certain  car  drawn  by  a  certain  mule  in  the 

entry  off  of  the  main  west  entry  between  rooms 

numbers and 

Plaintiff  further  avers  that  there  was  then  and  there  in 
full  force  and  effect  the  following  provision  of  statute  law: 
(Set  out  statute). 

That  under  said  law  it  then  and  there  became  and  was  the 
duty  of  the  defendant  to  cause  its  mine  inspector  to  visit  said 
mine  before  the  men  were  permitted  to  enter  it  and  to  observe 
whether  there  were  any  recent  falls  or  obstructions  in  rooms 
or  roadways  or  accumulation  of  gas  or  other  unsafe  conditions, 

and  to  examine  said  entry  between  rooms  and 

for  said  purpose  and  to  make  a  daily  record  of 

the  condition  of  the  mine  as  he  found  it,  between  said  rooms 

and    and  other  places  in  a  book 

kept  for  that  purpose,  and  to  allow  no  person  to  remain  in  said 
mine  nor  to  enter  therein  to  work,  except  under  the  direction 
of  the  mine  manager  until  all  conditions  had  been  made  safe. 

That  the  defendant  disregarding  its  duty,  as  aforesaid,  wil- 
fully and  knowingly  permitted  the  plaintiff  to  enter  said  inine 
to  work  therein  without  being  uiuler  the  direction  of  the  mine 
manager  on  said  date,  and  to  be  and  about  said  entry  between 

rooms  and   ,  well  knowing  that  there  then  and 

there  existed  in  said  mine  between  said  rooms and 

in  said  entry  a  dangerous  condition  caused  by 

allowing  a  large  amount  of  rock  and  debris,  commonly  called 
gob,  to  accumulate  and  be  along  said  roadway  between  paid 
points,  which  said  rock  and  debris  at  said  time  and  for  a  long 
time  prior  thereto  formed  an  obstruction  to  said  roadway,  and 
extended  from  the  rail  of  said  roadway  along  the  side  of  said 

track  to  a  great  height,  to  wit, feet  and  extended 

so  near  to  said  track  that  some  of  said  gob  would  catch  upon 
cars  passing  on  said  roadway,  which  said  rock  and  debris  so 
piled  along  the  side  of  said  roadway  then  and  there  formed  a 
dangerous  condition  in  said  mine  at  said  point. 

2.  And  plaintiff  further  avers  that  it  then  and  there  became 
and  was  the  duty  of  the  defendant  to  furnish  the  plaintiff  with 
a  reasonably  safe  mule  with  which  to  do  said  work. 

But  disregarding  said  duty  said  defendant  carelessly  and 
negligently  failed  to  use  reasonable  care  to  furnish  the  plaintiff 
with  a  reasonably  safe  mule  with  which  to  do  his  work  and 
then  and  there  carelessly  and  negligently  furnished  plaintiff 
with  a  dangerous  and  unsafe  mule,  which  mule  was  unsafe 
because    of    its    well    known    habit    of    balking,    which    was 


PERSONAL  INJURIES  973 

extremely  dangerous  in  said  mine  on  account  of  the  track  being 
on  a  slight  incline.  That  the  defendant  then  and  there  knew 
of  the  disposition  of  said  mule  to  balk,  or  by  the  exercise  of 
ordinary  care  might  well  have  known  it,  and  that  the  plaintiff 
had  no  knowledge  of  the  disposition  of  said  mule. 

3.  Plaintiff  further  avers  that  it  was  then  and  there  the  duty 
of  the  defendant  to  use  reasonable  care  to  provide  for  the 
plaintiff  a  reasonably  safe  place  to  work;  but  that  the  defend- 
ant disregarding  its  said  duty  carelessly  and  negligently  failed 
to  use  reasonable  care  to  furnish  the  plaintiff  a  reasonably 
safe  place  to  work,  in  this,  that  in  said  entry  off  of  the  main 

west  entry  in  said  mine,   between  rooms    and 

,  the  defendant  negligently  and  carelessly  per- 
mitted a  large  amount  of  loose  rock,  slate  and  dirt  commonly 
called  gob  to  accumulate  along  the  side  of  said  track  so  close 
to  said  track  that  it  then  and  there  impeded  the  passage  of 
said  car  along  said  track  and  caught  uj)on  the  sides  of  the 
same,  and  by  reason  thereof  then  and  there  formed  a  dan- 
gerous condition  at  said  point. 

By  means  whereof,  on  the  ....  day  of ,  19. .,  while 

plaintiff  was  then  and  there  in  the  usual  course  of  his  employ- 
ment in  hauling  coal  along  said  roadway,  and  while  riding  on 
the  front  end  of  a  car,  said  roadway  at  said  point  being  on  a 
slight  incline,  and  while  exercising  due  care  and  caution  for 
his  own  safety,  the  said  gob  which  was  then  there  piled 
along  said  roadway  at  said  point  as  aforesaid  and  which  had 
then  and  there  carelessly  and  negligently  been  permitted  to 
remain  along  said  driveway,  and  in  close  proximity  thereto, 
caught  upon  the  side  of  the  car  on  which  the  plaintiff 
was  then  and  there  riding  and  caused  the  mule  which  the  plain- 
tiff was  then  and  there  driving  to  become  unmanageable  and 
said  mule  did  throw  the  plaintiff'  off  of  said  car  between  the 
rib  of  said  entry  and  said  car,  whereby  he  was  greatly  bruised 
and  mashed  in  various  parts  of  his  body,  and  he  was  injured 
internally ;  that  said  injury  so  occasioned  is  permanent ;  that 
in  consequence  of  said  injury  the  plaintiff  became  sick,  sore, 
lame  and  disordered  and  so  remained  for  a  long  time,  to  wit, 
from  thence  hitherto,  during  all  of  which  time  he  suffered  great 
pain  in  body  and  mind  and  was  hindered,  and  prevented  from 
transacting  his  ordinary  aft'airs,  and  was  compelled  to  pay  out 
and  become  liable  to  pay  out  a  large  sum  of  money,  to  wit, 

dollars  in  and  about  endeavoring  to  be  healed  of 

said  wounds  and  sickness.     Wherefore,  etc. 

1578  Dang-erous  condition,  live  wire,  Narr.  (HI.) 

For  that  whereas,  heretofore,  on,  to  wit,  the  ....  day  of 
,  19.  .,  in  the  county  and  state  aforesaid,  the  defend- 
ant was  then  and  there  a  corporation  engaged  in  the  business 
of  mining  coal,  and  was  then  and  there  operating  a  certain  coal 


074  ANNOTATED    FORMS   OF    IMiKAOING    AND    PRACTICE 

mine  with  a  certain  shaft,  entries,  rooms  and  certain  roadways 
and  had  then  and  there  certain  electric  wires  for  the  con- 
veying of  electric  power  through  said  mine,  and  along  the 
entries  thereof,  in  and  along  and  through  which  certain 
employees  were  engaged  and  employed  in  and  about  the  work 
of  driving  certain  nniles  then  aiul  there  hitched  to  certain  coal 
cars;  and  at  the  time  and  place  aforesaid,  the  plaintift"  avers 
that  he  was  then  and  there  employed  by  the  defendant  in  the 
capacity  of  a  driver  of  a  certain  mule  then  and  there  hitched 
to  a  certain  coal  car,  in  a  certain  entry  in  said  mine  at  a  point 
where  one  of  said  wires  was  then  ami  there  located  along  the 
walls  of  said  entry,  at  a  point  where  the  same  was  easily 
touched  by  the  saiil  mule. 

And  the  plaintiff  avers  that  the  aforesaid  wire  at  the  time 
and  place  aforesaid  was  then  and  there  charged  with  electricity 
and  was  then  and  there  left  without  any  insulation  or  other 
protection  to  prevent  a  shock  to  any  person  or  mule  coming 
in  contact  ther«'with,  and  that  there  wa.j  then  and  there  in 
close  proximity  to  the  track  then  and  there  located  in  said 
entry,  and  uj)()n  which  certain  coal  cars  were  thru  and  there 
being  drawn  by  said  mule  a  certain  post,  and  that  the  said 
charged  wire,  in  an  unprotected  condition,  in  close  proximity 
to  the  track  aforesaid  and  the  post  near  the  same  then  and 
there  constituted  a  dangerous  condition  in  said  mine. 

And  the  plaintitt'  avers  that  the  defendant  had  then  and 
there  wilfully  failed  and  wilfully  neglected  to  comply  with 
the  statute  of  the  state  of  Illinois,  in  this,  that  the  mine  man- 
ager of  said  defendant  did  not  visit  all  the  various  working 
places  in  said  mine  as  often  as  practicable,  and  did  not  see 
that  all  the  dangerous  places  above  and  below  were  properly 
marked,  and  that  danger  signals  were  displayed  at  the  afore- 
said place  which  was  then  and  there  in  the entry 

of  said  mine,  and  which  was  then  and  there  dangerous  as 
aforesaid  to  the  plaintift'  while  driving  and  controlling  said 
mule. 

2.  And  also  it  then  and  there  was  among  other  things  pro- 
vided by  the  statute  of  the  state  of  Illinois  as  follows  to  wit : 
"No  one  shall  be  allowed  to  enter  the  mine  to  work  therein, 
except  under  the  direction  of  the  mine  manager,  until  all 
conditions  shall  have  been  made  safe.'* 

And  the  plaintiff  avers  that  the  defendant  then  and  there 
wilfully  failed  and  wilfully  neglected  to  comply  with  the  afore- 
said provisions  of  the  said  staute  by  then  and  there  allowing 
the  plaintiff  to  enter  its  said  mine  to  work  in  the  capacity 
of  a  mule  driver  therein,  and  not  under  the  direction  of  the 
mine  manager,  at  a  time  when  there  was  then  and  there  in  said 
mine  and  at  the  place  where  the  plaintiff  was  required  to  work 
a  certain  dangerous  condition,  which  had  not  then  and  there 
been  made  safe,  to  wit,  a  certain  live  wire  charged  with  elec- 


PERSONAL   INJURIES  975 

tricity,  which  was  then  and  there  on  the  walls  of  the  entrj^  in 
which  the  plaintitf  was  then  and  there  at  work  driving  and  con- 
trolling a  certain  mule  hitched  to  a  certain  coal  car  on  the 
track  in  said  entry,  and  which  was  then  and  there  wilfully 
placed  within  the  reach  of  the  aforesaid  mule  and  was  then 
and  there  left  without  any  insulation  or  other  protection 
to  prevent  an  electric  shock  to  said  mule  when  coming  into 
contact  therewith. 

And  the  plaintiff  avers  that  the  defendant  then  and  there 
knew  or  by  the  exercise  of  reasonable  inspection  would  have 
known  of  the  unprotected  condition  of  said  wire,  and  wilfully 
failed  to  exclude  the  plaintiff  from  said  working  place  until 
said  condition  was  made  safe. 

3.  And  the  plaintiff  avers  that  the  defendant  had  then 
and  there  wilfully  failed  to  comply  with  the  statute  of  the 
state  of  Illinois  therefor  provided,  in  this,  that  it  did  not  then 
and  there  have  a  mine  examiner  who  made  an  examination  of 
the  mine  and  a  record  of  its  conditions  in  compliance  with  the 
statute  aforesaid;  that  the  mine  examiner  employed  by  the 
defendant  did  not  visit  said  mine  and  inspect  the  same  at  all 
places  where  men  were  expected  to  pass  or  to  work  and 
observe  whether  there  were  any  unsafe  conditions;  and  he 
did  not  then  and  there  place  at  the  place  aforesaid  in  the  entry 
aforesaid,  inscriptions  on  the  wall  with  chalk,  showing  the 
day  and  month  of  his  visit;  and  he  did  not  then  and  there 
place  a  conspicuous  mark  at  the  aforesaid  dangerous  place, 
as  notice  for  all  men  to  keep  out ;  and  he  did  not  at  once 
report  to  the  mine  manager  the  dangerous  condition  and  the 
presence  at  the  aforesaid  place  of  an  electrically  charged  wire 
which  was  not  then  and  there  insulated  or  otherwise  protected 
from  the  contact  of  mules  in  said  entry,  which  condition 
had  theretofore  been  discovered  by  him ;  and  he  did  not  then 
and  there  prevent  the  plaintiff  and  other  employers  from 
entering  the  said  mine  at  the  time  aforesaid  to  work  therein 
until  all  conditions  were  made  safe,  the  plaintiff  being  then 
and  there  at  work  not  under  the  direction  of  the  mine  man- 
ager; and  the  said  mine  examiner  did  not  then  and  there  make 
a  daily  record  of  the  conditions  of  the  mine  as  he  found  it,  in 
a  book  kept  for  that  purpose ;  and  he  did  not  make  the  said 
record  before  the  said  plaintiff  was  permitted  to  enter  the  said 
mine. 

And  the  plaintiff  avers  that  he  was  then  and  there  at  work 
as  aforesaid,  in  a  certain  entry  in  said  mine  at  the  place  of 
said  unprotected  and  charged  wire,  in  drivng  and  controlling 
a  certain  rule  then  and  there  hitched  to  a  certain  coal  car 
which  was  then  being  drawn  by  said  mule  along  a  certain  track 
in  said  entry ;  and  while  he  was  so  engaged  the  said  mule  then 
and  there  came  in  contact  with  the  aforesaid  wire,  and  then 
and  there  was  frightened  and  caused  to  lunge  and  jump,  and 


976  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

thereby  threw  and  pulled  said  car  in  such  manner  as  to  throw 
the  plaintiff  between  said  car  and  a  certain  pole  then  and  there 
in  close  proximity  to  said  track;  and  thereby  then  and  there 
the  plaintiff  had  his  pelvis  bone  and  divers  other  bones  of  his 
body  broken  and  divers  ligaments  and  nerves  of  his  body 
strained  and  injured,  his  back  lamed,  his  body  and  limbs 
crushed  and  mangled;  and  other  injuries  to  his  body  and 
nerves  he  then  and  there  sustained ;  and  by  reason  thereof  he 
has  been   permanently   injured,   and   he   has  been  obliged   to 

lay  out  divers  sums  of  money,  to  wit,    dollars, 

in  an  endeavor  to  be  healed  and  cured,  and  he  has  suftVred 
great  pain  and  distress  and  has  been  prevented  from  following 
his  usual  and  accustomed  work  and  has  lost  divers  great  sums 
of  money  because  thereof. 
To  the  damage,  etc. 

1579  Elevator,  air-brake  defective,  Narr.  (Va.) 

For  this,  to  wit,  that  before  and  at  the  time  of  the  com- 
mitting of  the  several  grievances  hereinafter  next  complained 
of,  the  said  defendant  was  the  owner  of  and  was  operating  a 

certain  mine,  commonly  called  the  " mines,"  in 

the  said  county  of for  the  purpose  of  obtaining 

therefrom  certain  ore,  commonly  called  "pyrites."  That 
before  and  at  the  time  of  the  committing  of  said  grievances 
the  said  plaintiff" 's  said  intestate  was  an  employee  of  the  said 
defendant  in  the  capacity  of  a  common,  or  unskilled  laborer 
in  and  about  its  said  mining  operations  within  said  mine. 
That  at  the  time  of  said  employment  of  the  said  intestate  by 
the  said  defendant,  the  latter  undertook  to  carry,  or  transport 
him  from  the  surface  of  the  earth  to  and  from  whatsoever 
place  within  said  mine  it  might  be  the  duty  of  the  said  intestate 
to  work,  during  the  existence  of  such  employment,  by  hoisting 
and  lowering  the  latter  within  the  shaft  of  said  mine,  which 
was  not  a  vertical,  but  an  inclined  shaft,  at  an  angle  of  thirty 
degrees  from  the  vertical,  and  which  was  not  cased  up  so  as 
to  prevent  a  person  on  board  of  one  of  the  cars  of  the  said 
defendant,  as  the  said  intestate  was  as  hereinafter  set  forth, 
from  being  thrown  from  such  car,  as  the  said  intestate  was 
thrown  and  killed  as  hereinafter  also  set  forth;  and  the 
machinery  used  for  such  last  named  purpose  by  the  said 
defendant  at  the  time  of  such  employment  was  reasonably  safe 
and  suitable  therefor,  having  regard  to  the  character  of  said 
shaft,  being  such  machinery  as  was  in  use  at  such  mine  at  the 
time  that  said  employment  commenced. 

That  thereupon  it  became  and  was  the  duty  of  the  said 
defendant,  after  said  employment  began,  not  to  change  such 
machinery,  by  substituting  and  using  for  so  carrying,  or 
transporting  the  said  intestate,  other  machinery  in  its  place 
not  reasonably  safe  and  suitable  and  not  kept  in  a  condition 


PERSONAL   INJURIES  977 

reasonably  safe  and  suitable  for  such  purpose,  without  giving 
notice  to  the  latter  of  any  increased  danger,  or  risk  to  his  safety 
caused  thereby,  known  to  the  said  defendant,  and  unknown 
to  the  said  intestate,  which  was  not  obvious,  or  visible  to,  and 
which  the  latter  could  not  discover  by  the  exercise  of  reason- 
able care  and  observation  on  his  part. 

Yet,  the  said  defendant  not  regarding  its  duty  in  that  behalf, 
after  such  employment,  and  a  very  short  time  before  the  death 
of  said  intestate,  (which  occurred  as  hereinafter  set  forth), 
to  wit,  about  two  weeks  before  such  death,  did,  carelessly  and 
negligently,  change  such  machinery  by  substituting  and  using 
other  machinery  in  its  place  not  reasonably  safe  and  suitable 
and  not  kept  in  a  condition  reasonably  safe  and  suitable  for 
said  last  named  purpose,  in  this,  to  wit,  that  the  said  defend- 
ant installed  and  used  for  said  transporting  and  carrying  of 
the  said  defendant  a  new  and  different  kind  of  hoisting 
machinery  from  that  theretofore  used  by  it,  not  reasonably 
safe  and  suitable  and  not  kept  in  a  condition  reasonably  safe 
and  suitable  for  such  purpose,  in  this,  to  wit,  that,  at  the  time 
of  the  injuries  to  said  intestate  which  caused  his  death  as 
hereinafter  set  forth,  the  means  furnished  by  such  new  hoisting 
machinery  used  by  the  said  defendant  for  stopping  and  holding 
the  car,  skip  or  bucket,  (as  the  cars  used  by  the  said  defendant 
for  carrying,  or  transporting  said  intestate  and  other  employees 
of  the  said  defendant  to  and  from  their  places  of  work  in  said 
mine  are  variously  called),  in  the  shaft  of  said  mine,  was  to 
operate  by  compressed  air  the  brake  controlling  the  holding 
and  lowering  of  such  car,  (which  brake  when  so  operated 
will  be  hereinafter  referred  to  as  "air-brake")  which  air- 
brake was  unreliable  because,  as  originally  constructed  and 
installed  the  air  leaked  therefrom,  and  after  such  new  machin- 
ery was  installed  as  aforesaid  it  was  allowed  by  said  defend- 
ant to  become  out  of  repair  so  that  the  air  leaked  therefrom 
and  by  reason  thereof  it  was  likely  to  fail  in  its  control  of 
such  ear  and  allow  such  car  when  it  was  attempted  to  be  held 
hereby  in  any  place  in  said  shaft,  to  escape  control ;  and  such 
air-brake  as  originally  constructed  and  installed,  and  as  it  con- 
tinued to  be  was  likely  to  stop  such  car  with  a  sudden  and 
violent  jar,  when  attempt  should  be  made  to  stop  same  when 
in  motion  going  down  said  shaft ;  all  of  which  defects  and  said 
results  likely  to  be  caused  thereby  as  aforesaid,  were,  before 
and  at  the  time  of  said  injuries  to  said  intestate,  well  known 
to  the  said  defendant,  or  would  have  been  so  known  to,  or 
foreseen  by  it,  by  the  exercise  of  reasonable  care  and  fore- 
thought on  its  part  for  the  safety  of  its  employees  including 
the  said  intestate ;  but  were  wholly  unknown  to  the  said 
intestate ;  were  not  obvious  or  visible  to,  and  could  not  have 
been  discovered  by  him  by  the  exercise  of  reasonable  care  and 
observation  on  his  part;  and  that  the  said  old  machinery, 
which  such  new  machinery  displaced  as  aforesaid,  was  fur- 


978  ANNOTATED    FORMS   OF   PLEADING   AND    PRACTICE 

nished  with  a  similar  brake  operated  by  band  and  foot  power, 
which  was  not  likely  to  fail  in  tbe  control  of  said  car,  or  allow 
it  to  escape  control  in  any  of  tbe  situations  above  mentioned; 
and  was  not  likely  to  stop  sueb  car  with  a  violent  and  sudden 
jar,  when  attempt  sbould  be  made  to  stop  same  wlien  in  motion 
going  down  said  shaft;  but  would,  on  the  contrary,  have 
operated  in  both  of  such  situations,  with  reasonable  certainty, 
without  causing  such  results,  all  of  which  was,  before  and  at 
the  time  of  said  injuries,  well  known  to  the  said  defendant. 

2.  And  for  this  also  that  before  and  at  the  time  of  the  com- 
mitting of  the  several  grievances  hereinafter  next  complained 
of,  the  said  defendant  was  the  owner  of  and  was  oi)erating  a 

certain  mine,  commonly  called  the  " mines,"  in 

the  said  county  of ,  for  tbe  i)urpose  of  obtaining 

therefrom  certain  ore,  commonly  called  '"pyrites,"  wbicli 
business  was  dangerous,  complicated  and  carried  on  by  a  great 
number  of  employees — dilferent  employees  having  ditfercnt 
duties  to  perform — and  that  especially  were  the  duties  of  the 
employee,  hereinafter  designated  as  the  "hoistman,"  and  like- 
wise the  machinery  he  operated  complicated  and  abnormally 
dangerous  to  the  safety  of  the  plaintiff's  ititt'state  and  his 
co-emplo3'ees,  unless  such  duties  wiTe  pei-1'ormed  and  such 
machinery  was  operatetl  in  a  reasonably  safe  method. 

That  before  and  at  the  time  of  the  committing  of  said  griev- 
ances, the  said  plaintiff's  said  intestate  was  an  employee 
of  the  said  defendant  in  the  capacity  of  a  common,  or  unskilled 
laborer  in  and  about  its  said  mining  operations  within  said 
mine. 

That  at  the  time  of  said  employment  of  said  intestate  by  the 
said  defendant,  the  latter  undertook  to  transport,  or  carry 
the  said  intestate  from  the  surface  of  the  earth  to  and  from 
whatsoever  place  within  the  said  mine  it  migiit  be  his  duty  to 
work  during  the  existence  of  such  employment,  by  means  of 
hoisting  machinery  equipped  with  a  brake,  which  might  have 
been  operated  by  hand,  (which  when  so  operated  will  be 
hereinafter  referred  to  as  "hand-brake"),  by  another 
employee  of  the  said  defendant  who  operated  the  said  hoisting 
machinery  for  the  said  defendant,  and  who  was  commonly 
known  and  designated  as  a  "hoistman;"  that  said  machinery, 
if  so  operated,  would  have  controlled  and  held  the  car  here- 
inafter mentioned,  from  which  the  said  intestate  was  thrown 
and  killed  as  hereinafter  set  forth,  and  would  have  prevented 
the  loss  of  control  of  such  car  and  the  sudden  stopping  of  the 
same  also  hereinafter  set  forth,  all  of  which  was  well  known 
to  the  said  defendant  before  and  at  the  time  of  the  said  injuries 
to  said  intestate  which  caused  said  death ;  that  said  machinery 
was  then  and  there  equipped  with  the  same  brake  aforesaid, 
which  might  have  been  operated  by  the  said  hoistman  for  the 
said  defendant  also  by  compressed  air  (which  when  so  operated 
will  be  hereinafter  referred  to  as  "air-brake,")   by  turning 


PERSONAL   INJURIES  979 

the  full  pressure  of  such  air  on  such  brake  and  continuing  such 
air  so  turned  on,  to  hold  the  car  hereinafter  mentioned,  from 
which  the  said  intestate  was  thrown  and  killed  as  hereinafter 
set  forth;  that,  if  so  operated,  it  was  unreliable  because  th<? 
air  leaked  therefrom  and  by  reason  thereof  it  was  likely  to  lose 
control  of  said  car,  and  not  hold  the  same,  but  did  usually  con- 
trol and  hold,  and  would  likely  have  controlled  and  held  such 
car,  in  the  situation  in  which  the  car  was  placed  with  said 
intestate  on  board  of  it  as  hereinafter  set  forth ;  that  if  said  car 
Avas  operated  with  said  air  not  turned  on  and  with  such  air  con- 
tinued so  turned  on  to  its  full  pressure,  said  machinery  would 
not  control  or  hold  such  car  in  such  situation  because  of  the 
leaking  of  the  air  from  said  air-brake,  and  if  used  to  stop  such 
car  after  control  of  it  was  lost,  as  it  was  used  as  hereinafter 
set  forth,  the  air-brake  was  likely  to  cause  a  sudden  and  violent 
stop  and  jar  of  such  car,  such  as  that  which  threw  the  said  intes- 
tate off  therefrom  and  caused  his  death  as  likewise  hereinafter 
set  forth,  but  which,  in  such  case,  might  have  been  so  used  as  to 
stop   such   car  without  such  sudden   aTid   violent   jar,   by  the 
exercise  of  reasonable  care  and  skill   (which  reasonable  care 
and   skill,    however,   under   such   circumstances,    would   have 
required  exceedingly  great  care  and  skill  on  the  part  of  such 
hoistman,  and  his  being  in  fit  condition  physically  and  men- 
tally, and  possessed  of  presence  of  mind  and' baving  control  of 
his  nerVous  system),  by  said  hoistman  gradually  and  by  degrees 
slowly  turning  said  air  upon  said  air-brake  so  as  to  "gradually 
increase  the  air  pressure  thereon,  while  such  car  was  running 
wild  down  said  shaft,  until  such  increasing  pressure  brought 
such  car  to  an  easy  stop;  all  of  which  defects  and  said  results 
likely  to  be  caused  thereby  as  aforesaid  were,  before  and  at 
the  time  of  said  injuries,  well  known  to  the  said  defendant, 
or  would  have  been  so  knoAvn,  or  foreseen  by  it,  by  the  exer- 
cise on  its  part  of  reasonable  care  and  forethought  for  the 
safety  of  its  employees,  including  the  said  intestate,  but  were 
Avholly  unknown,  were  not  obvious,  or  visible  to,  and  could  not 
have  been  discovered  by  the  said  intestate  by  the  exercise  of 
reasonable  care  and  observation  on  his  part.* 

That  thereupon  it  became  and  was  the  duty  of  the  said 
defendant  to  make  and  enforce  some  reasonable  rule,  or  regu- 
lation, directing  and  requiring  the  hoistman  operating  the  said 
hoisting  machinery  to  use  said  hand-brake  to  control  said  car 
and  to  hold  and  stop  the  same  in  the  situations  aforesaid,  and 
not  the  said  air-brake. 

Yet,  the  said  defendant,  not  regarding  its  duty  in  that  behalf, 
did  not  make,  or  enforce  any  rule,  or  regulation  directing, 
or  requiring  such  hoistman  operating  the  said  hoisting  machin- 
ery to  use  said  hand-brake  to  control  said  car  and  to  hold  and 
stop  the  same  in  such  situations  as  those  aforesaid  and  not  the 
said  air-brake;  but  wholly  neglected  so  to  do,  and,  on  the  con- 
trary, at  the  time  of  said  injuries  to  the  said  intestate  directed, 


980  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

or  knowingly  allowed  such  hoistman  to  neglect  to  use  said 
hand-brake  and  to  use  and  rely  entirely  upon  said  air-brake 
for  such  purposes. 

3.  (Consider  second  count  to  star  as  here  repeated  the  same 
as  if  set  out  in  words  and  figures.) 

That  thereupon  it  became  and  was  the  duty  of  the  said 
defendant  to  use  reasonable  care  and  diligence  to  provide  a 
fit  person  as  hoislman  to  operate  said  hoisting  machinery  and 
brakes,  that  is  to  say  a  person  who  was  not  unfit  because  of 
lack  of  experience,  or  by  reason  of  his  physical  or  mental  con- 
dition and  one  Avho  was  of  a  reasonably  careful  disposition  and 
who  was  likely  to  have  sufificient  regard  and  consideration  for 
the  safety  of  his  co-employees,  including  the  plaintiff's 
intestate,  to  use  said  hand-brake,  instead  of  air-brake,  in  the 
situation  aforesaid,  and  one  not  likely  to  use  said  air-brake 
instead  of  sand  hand-brake  in  such  situation,  thereby  increas- 
ing the  danger  and  risk  to  the  safety  of  said  intestate  beyond 
that  ordinary  incident  to  the  said  transporting  or  carrying  of 
him  by  the  said  defendant. 

Yet,  the  said  defendant,  not  regarding  its  duty  in  that  behalf, 
did  not  use  reasonable  care  and  diligence  to  provide  such  fit 
person  as  hoistman,  but  wholly  neglected  so  to  do,  and,  oti 

the  contrary,  on  the  ....  day  of ,  19. .,  at  about 

o'clock  of  the noon  of  that  day,  in  the  county  afore- 
said, the  said  defendant  provided  an  unfit  person  as  hoistman 
to  operate  said  hoisting  machinery  and  brakes  with  reasonable 
care  and  skill  in  this,  to  wit,  that  such  person  so  provided  by 
the  said  defendant  had  not  had  sufficient  experience  wherewith 
to  operate  said  air-brakes  with  reasonable  care  and  skill  as 
aforesaid,  and  independent  of  this  he  was  a  man  of  nervous  and 
excitable  temperament  even  when  in  good  health  and  condi- 
tion, and  who  was  then  and  there,  at  the  time  and  place  last 
aforesaid,  sick  with  pleurisy,  and  in  a  feverish  and  otherwise 
weak  and  debilitated  condition,  resulting  from  such  sickness, 
and  also  from  excessive  use  of  intoxicating  liquor,  so  that  then 
and  there  his  nervous  system  was  not  under  control,  and  his 
mind  was  abnormally  excitable  and  unreliable  in  its  operation 
and  was  not  of  a  reasonably  careful  disposition,  but  who  was 

one  who  had  for  a  long  time  before  the  said day  of , 

19. .,  habitually  shown  a  lack  of  regard  and  consideration  for 
the  safety  of  his  co-employees,  including  the  said  intestate,  by 
using  said  air-brake,  instead  of  said  hand-brake,  in  raisng, 
lowering  and  holding  said  car  in  said  shaft  when  loaded  with 
such  co-employees,  and  had  during  such  time  habitually  neg- 
lected to  use  said  hand-brake  to  hold  such  car  when  stopped 
in  such  shaft  and  to  control  or  stop  such  car  when  descending 
such  shaft  when  so  loaded;  that  this  disposition  and  conduct 
and  unfit  condition  of  such  hoistman  were  well  known  to  the 
said  defendant  at  the  time  of  such  conduct  or  by  the  exercise 


PERSONAL   INJURIES  981 

of  reasonable  care  and  diligence  on  its  part  would  have  been 
so  known  to  it ;  but  that  notwithstanding  this,  the  said  defend- 
ant, instead  of  discharging  said  hoistman  continued  him  in 
its  employment. 

And  that  accordingly,  on  the  ....  day  of ,  at  about 

0  'clock  in  the noon  of  that  day,  in 

the  county  aforesaid  the  said  defendant,  with  such  hoistman, 
undertook  to  transport  or  carry  the  said  intestate  from  the 
place  within  said  mine  where  it  was  then  and  there  his  duty 

to  work,  to  wit,  from  the  level  or  excavation  therein 

hundred  feet  below  the  surface,  up  said  shaft  to  the  surface  of 
the  earth;  and  to  perform  such  undertaking,  the  said  defend- 
ant, contrary  to  its  said  duty  in  that  behalf  as  aforesaid,  used 
said  new  machinery  and  operated  said  air-brake  for  such  pur- 
pose, without  then  giving,  or  having  at  any  time  given  any 
notice  whatsoever  to  the  said  intestate  of  any  increased  dan- 
ger or  risk  to  his  safety  caused  thereby  and  the  said  unfit  hoist- 
man so  provided  by  the  said  defendant  as  aforesaid;  that  by 
reason  of  such  unfitness,  then  and  there  said  defendant  did 
not  operate  said  machinery  and  brakes  with  reasonable  care 
and  skill  so  as  not  to  increase  the  danger  and  risk  to  the  safety 
of  the  said  intestate  beyond  that  ordinarily  incident  to  the  said 
transporting  or  carrying  of  him  by  the  said  defendant,  but, 
on  the  contrary,  operated  said  air-brake,  although  the'  said 
defects  of  said  air-brake  and  said  results  likely  to  be  caused 
thereby  as  aforesaid,  were,  before  and  at  such  time  well  known 
to  the  said  defendant,  or  would  have  been  so  known  to,  or 
foreseen  by  it,  by  the  exercise  by  it  of  reasonable  care  and  fore- 
thought as  aforesaid;  and  were  wholly  unknown,  were  not 
obvious,  or  visible  to  and  could  not  have  been  discovered  by 
the  said  intestate  by  the  exercise  of  reasonable  care  and  obser- 
vation on  his  part,  as  aforesaid ;  that  after  the  said  intestate 
had  been  and  there  boarded  one  of  said  cars,  in  the  position  in 
which  it  was,  before  and  at  such  time  customary  for  the  said 
defendant  to  so  transport,  or  carry  the  said  intestate  and  other 
employees  of  the  said  defendant  from  said  mine,  and  it  was 
unknown  to  said  intestate  that  such  hoistman  was  operating,  or 
would  then  operate  such  machinery,  and  after  the  said  defend- 
ant had  been  notified  that  the  said  intestate  and  other 
employees  of  said  defendant  were  on  board  of  such  car,  ready 
to  be  transported  or  carried  up  said  shaft  to  the  surface  of 
the  earth,  the  said  defendant  negligently  and  carelessly  used 
and  relied,  and  allowed  the  said  hoistman  to,  and  the  latter 
accordingly  did  use  and  rel^^  upon  the  said  air-brake,  instead 
of  using  and  relying  upon  said  hand-brake  to  hold  such  car 
where  it  then  and  there  was  in  said  shaft,  loaded  with  said 
intestate  and  said  other  employees  of  said  defendant,  before 
starting  such  car  up  said  shaft ;  that  while  the  said  defendant 
was  then  and  there  through  the  agency  of  such  hoistman  using 
and  relying  upon  said  air-brake,  because  of  the  leaking  of  the 


982  ANNOTATED   FORMS  OF    PLEADING   AND   PILVCTICE 

said  air-brake,  it  failed  in  its  control  of  such  car  and  such  car 
escaped  such  control  and  ran  down  said  shaft  with  great 
speed,  with  the  said  intestate  and  said  other  employees  tliereon 
as  aforesaid,  towards  the  bottom  of  said  shaft,  which  bottom 

was  then  and  there  some feet  below  said  surface 

of  the  earth;  that  thereupon  the  saiil  ilcfenilant  iu'^'li»^L'ntly 
and  carelessly  allowed  the  said  hoistman  to,  and  tlie  latter 
accordingly  did,  undertake  to  stop  said  car  by  the  use  of  said 
air-brake,  by  not  turning  said  full  air  pressure  on  such  brake 
and  continuing  same  so  turned  on,  but  by  turning  same  on  and 
then  turning  off  any  further  continuing  supply  of  air  thereto, 
and  instead  of  with  the  said  hand-brake,  which  caused  a  sud- 
den and  violent  stop  and  jar  of  such  car,  when  it  had  gone 

about  feet  down  said  shaft  below  where  it  had 

been  held  as  aforesaid,    (to  wit,  to  about    feet 

below  said  surface,  and  about    feet   above  the 

bottom  of  said  shaft),  whereby  the  said  defendant  threw  the 
said  intestate  from  such  car  down  said  shaft,  causing  him 
to  receive  severe  bodily  injuries,  whereof,  upon  said  ....  day 

of ,  19..,  at  the  county  aforesaid,  the  said  intestate 

died;  by  reason  whereof  right  and  action  accrue(l  pursuant  to 
the  statute  in  such  case  provided,  to  the  said  plaintiff,  who  has 
since  the  death  of  the  said  intestate  duly  qualified  as  his 
administratrix. 

1580  Explosion,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the   ....   day  of 

,  19.  .,  in  tile  city  of ,  in  the  county  of 

,  in  state  of  Illinois,  the  defendant  was  engaged 

in  the  business  of  operating  a  certain  coal  mine  or  shaft  for 
the  purpose  of  winning,  mining  and  hoisting  coal;  that  a  part 

or  portion  of  said  mine  was  known  as  the room 

of  the south, west  passageway,  or 

long  wall,  from  which  room  the  coal  had  been  removed  prior  to 

the  date  of ,  19.  .,  and  in  which  room  or  entry  the 

tracks,  which  had  been  used  for  the  purpose  of  removing  the 
coal  from  said  room  were  yet  remaining;  that  the  mouth  or  en- 
trance of  this  said  room  or  entry  was,  on  the  date  aforesaid, 

about feet  in  height,  and  at  a  distance  of  about 

feet  from  the  said  mouth  or  entrance  of  the  said 

room,  the  roof  was  much  higher;  that  in  tiiis  higher  chamber 

or  dome  of  the  said room  or  entry  large  (luantities 

of  poisonous,  inflammable  and  explosive  gases  had  accumulated 
prior  to  the  said  date,  and  had  been  allowed  to  remain  in  said 
room  or  entry,  on  and  about  the  said  date ;  and  that  in  the  said 
room  the  servants  of  the  defendant,  including  the  plaintiff, 
were  required  to  be  and  to  work  in  the  course  of  their  regular 
employment. 

And  the  plaintiff  being  then  and  there  employed  by  the 


PERSONAL  INJURIES  983 

defendant  in  the  said  mine,  it  was  the  duty  of  the  said  plain- 
tiff in  the  regular  course  of  his  employment  to  clean  out  and 
remove  obstructions  of  dirt,  slate,  stone  and  other  material 
which  had  accumulated  on  the  tracks  of  the  passageways  of 
the  said  mine  where  the  cars  of  said  defendant  were  moved 
about ;  and  it  was  also  the  duty  of  the  plaintiff  in  the  course 
of  his  employment  to  load  this  slate,  dirt,  stone  and  other 
material  in  a  car  furnished  by  the  defendant  to  the  plaintiff 
for  the  purpose  and  to  take  the  same  and  unload  it  at 
and  in  some  room  or  entry  designated  by  the  defendant,  from 
which  the  coal  had  been  previously  removed ;  that  upon  the 

night  of ,  19.  .,  the  plaintiff'  was  directed  by  the 

defendant,  that  he  in  company  with  another  servant  of  the 
defendant  take  a  certain  large  sized  coal  car  belonging  to 
the  company,  and  brush  the  entries  and  passageways  in  the 

part  of  the  mine  and  in  the  vicinity  of  the  said 

room  of  the south, west  passageway 

and  load  the  dirt,  slate,  stone  and  other  material  so  found  in 
the  said  entries  and  passageways  into  the  said  car  and  deposit 
it  in  some  room  or  entry  adjoining  the  passageway  known  as 

the south west  passageway  or  long 

wall ;  that  this  the  said  plaintiff  and  other  servants  of  the 
defendant,  proceeded,  then  and  tliere,  to  do;  and  that  they  were 
compelled  to  unload  the  said  dirt,  slate  and  stone  so  loaded  in 

the  said  car  by  them  in  the  said room  of  the 

south,   west  passageway,  by  reason  of  its  being  the 

only  room  in  that  vicinity,  the  mouth  of  which  was  of  suffi- 
cient height  to  admit  the  said  car. 

And  the  plaintiff  avt-rs  that  it  then  and  there  became  and 
was  the  duty  of  the  defendant  to  use  reasonable  care  to  keep 
and  maintain  the  said  passageways,  rooms,  and  entries  in  a 
reasonably  safe  condition  for  the  use  of  the  said  employees, 
aforesaid ;  but  that  the  defendant,  not  regarding  its  duty  in 
that  respect  or  behalf,  negligently  and  carelessly  suffered  and 
permitted  large  quantities  of  inflammable  gas  (sic)  to  accumu- 
late and  remain  in  certain  of  the  passageways,  entries,  and 
rooms  wherein  it  was  the  custom,  duty  and  business  of  the 
employees  of  the  mine  to  be  and  work;  of  which  gas  (sic)  the 
plaintiff  was  wholly  unaware,  and  the  presence  of  which  gas 
the  defendant  did  then  know,  or  by  the  exercise  of  reasonable 
care  ought  to  have  known. 

2.  And  plaintiff  further  avers  that  it  then  and  there  also 
became  and  was  the  duty  of  said  defendant  to  use  reasonable 
care  to  keep  said  passageways,  rooms,  and  entries  where  its 
employees  were  directed  and  required  to  work  reasonably  free 
from  the  accumulation  of  explosive  or  inflammatory  gas  (sic)  ; 
but  wholly  neglecting  its  duty  in  this  behalf,  said  defendant, 
as  aforesaid,  had  then  and  there  allowed  a  large  quantity  of 
gas   (sic)   to  accumulate  in  said  entry  or  room  at  the  point 


984  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

where  the  plaintiff  was  unloading  the  said  dirt,  stone,  slate, 
and  other  material,  of  the  presence  of  which  gas  (sic)  the 
plaintiff  was  wholly  unaware  and  the  risk  of  which  he  did 
not  assume,  and  concerning  the  presence  of  the  said  gas  (sic) 
the  defendant  did  know,  or  by  the  exercise  of  reasonable  care 
ought  to  have  known. 

3.  And  that  it  then  and  there  also  became  and  was  the  duty 
of  the  defendant  to  use  reasonable  care  to  keep  the*  mine,  and 
the  rooms,  entries,  and  passageways  therein  reasonably  free 
from  all  inflammable,  noxious  and  explosive  gases,  and  supplied 
with  a  sufficient  quantity  of  fresh,  pure  and  wholesome  air,  and 
to  keep  closed  and  sealed  all  rooms  and  entries  wherein  there 
was  not  a  quantity  of  pure,  fresh  and  wholesome  air,  sulTicient 
for  the  health  and  safety  of  all  men  and  animals  employed  in 
the  said  mine  and  to  use  reasonable  care  to  keep  the  roof  of 
the  rooms,  entries,  and  passageways  reasonably  free  from  the 
accumulations  of  noxious,  inflammable  and  explosive  gases 
wherein  the  men  were  required  to  be  and  work  in  the  course 
of  their  employment  by  the  defendant;  but  the  said  defendant 
disregarding  its  duty  in  this  behalf,  carelessly  and  negligently 
failed  to  provide  or  have  suflieient  ijuantities  of  fresh,  pure 
and  wholesome  air  in  certain  entries  and  rooms,  where  the 
plaintiff,  in  the  due  course  of  his  employment  was  reciuired  to 

work,  and  be,  to  wit,  the  flrst  room  of  the south, 

west  passageway  or  long  wall,  but  the  current 

passed  along  the  adjoining  passageway  and  did  not  enter  in 
the  room  or  entry  aforesaid,  wherefore  large  quantities  of 
inflammable  and  explosive  gases  accumulated  by  reason  of  the 
absence  of  sufficient  (luantities  of  fresh  air,  as  aforesaid,  and 
had  negligently  been  permitted  to  remain  in  the  said  room 
or  entry  where  the  plaintiff  was  required  in  the  course  of  his 
employment  to  be  and  work,  the  presence  of  which  gas  (sic) 
was  then  and  there  known  to  the  defendant,  or  by  the  exercise 
of  reasonable  care  might  have  been  known  by  the  defendant, 
but  was  unknown  to  the  plaintiff  and  the  risks  arising  there- 
from he  did  not  assume. 

4.  And  it  then  and  there  also  became  and  was  the  duty  of 
the  defendant  to  maintain  currents  of  fresh  air,  on  the  date 
aforesaid,  in  the  said  mine  and  the  rooms,  entries  and  passage- 
ways therein,  sufficient  for  the  health  and  safety  of  all  the 
men  and  animals  employed  therein,  and  it  was  the  duty  of 
the  defendant  to  force  said  currents  of  air  through  every  work- 
ing place  throughout  the  mine,  so  that  all  parts  of  the  said 
mine  should  be  reasonably  free  from  deleterious  air,  as  by  the 
statute  of  the  state  of  Illinois  in  such  case  made  and  provided, 

namely,  section  ,  chapter  93,  Kurd's  Revised 

Statute ;  that  there  was  in  the  said  mine,  then  and  there  a  part 
known  as  the   room  of  the  south, 


PERSONAL   INJURIES  985 

west   passageway,    from   which    said   room    or 

entry  the  coal  had  been  previously  removed,  and  in  which  said 
room  or  entry  the  tracks  which  had  been  used  for  the  purpose 
of  running  coal  cars  thereon  at  the  time  the  said  coal  was 
being  removed  and  hauled  out  of  said  room  were  yet  remain- 
ing on  the  said  date  of ,  19.  .,  that  it  became 

and  was  necessary  for  the  employees  of  the  defendant  company 

to  be  and  work  in  and  about  the  said room  of  the 

south, west,  passageway  in  the  reg- 
ular course  of  their  employment ;  that  it  then  and  there  became 
the  duty  of  the  said  defendant  to  maintain  currents  of  fresh 

air  sufficient  in  the  said room  of  the 

south, west,  passageway  for  the  health  and  safety 

of  all  the  servants  of  the  said  defendant,  who  were  recjuired  to 

be,  and  work  in,  and  about  the  said room  of  the 

south, west  passageway  in  the  due 

course   of   their   employment,    so    that    all   the    parts    of    the 

said room  of  the south, 

west  passageway  should  be  reasonably  free  from  the  delete- 
rious air  of  every  kind ;  but  the  said  defendant  wilfully  dis- 
regarding its  duty  in  this  behalf  did  not  maintain  in  and  about 
that  part  of  the  said  mine  and  in  the  said  room  or  entry, 

known  as  the  room  of  the  south, 

west  passageway  currents  of  fresh  air  sufficient 

for  the  health  and  safety  of  all  the  men  employed  and  about 
the  said  part  of  the  said  mine ;  and  the  said  defendant  did  not 
on  the  date  aforesaid,  then  and  there,  force  the  said  currents 
of  fresh  air  into  that  part  of  the  said  mine,  known  as  the 

room  of  the    south,    

west  passageway,  so  that  the  air  in  the  said  room  was  reason- 
ably free  from  deleterious  air  of  every  kind  on  the  said  date 

of ,  19.  .,  but  wholly  neglecting  its  duty  in  this  behalf 

defendant  did  then  and  there  permit  the  air  currents  to  pass 
along  the  adjoining  passageway  or  entry  in  front  of  the  said 
room,  wherefore  large  quantities  of  inflammable  and  explosive 
gases  had  accumulated,  by  reason  of  the  absence  of  sufficient 

air,  as  aforesaid,  in  the  said room  of  the 

south, west,  passageway,  large  quantities  of  gas 

then  and  there  accumulated  in  the  said  room  and  had  been 
permitted  to  remain  therein. 

5.    And  that  it  then  and  there  also  became  and  was  the  duty 
of  the  defendant,  by  reason  of  the  statute  in  such  case  made 

and  provided,  namely,  section ,  chapter  93,  Kurd's 

Statute  19.  .,  to  employ  a  mine' examiner  to  visit  the  mine  each 
morning  before  the  men  were  permitted  to  enter  it  and  to 

inspect  the  said  mine,  including  the  said  room 

or  entry  of  the south, west  passage- 
way, or  long  wall  and  the  parts  adjacent  thereto,  and  to  observe 
whether  there  were  any  recent  falls  or  obstructions  in  said 
room  or  entry,  or  roadways  adjacent  thereto,  or  accumulations 


986  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

of  gas  or  other  unsafe  conditions,  as  above  set  forth,  in  said 
portion  of  the  mine ;  and  as  evidence  of  his  examination  of  the 
said  place,  to  inscribe  on  the  wall  thereof  the  month  and  day 
of  the  month  of  his  visit ;  and  wiien  tiie  accumulation  of  gas 
was  discovered  in  the  said  room  or  entry,  it  was  the  duty  of  the 
said  mine  examiner  to  place  a  conspicuous  mark  thcn-at,  as 
notice  for  all  men  to  keep  out,  and  at  once  to  report  his  tind- 
ing  to  the  mine  manager;  and  it  was  the  further  duty  of  the 
defendant  to  permit  no  one  to  enter  the  mine  to  work  therein, 
except  under  the  direction  of  the  mine  manager,  and  until 
all  conditions  were  made  safe;  but  the  said  defendant  wilfully 
disregarding  its  said  duty  in  this  behalf,  did  not  have  a  mine 
examiner  who  visited  the  mine,  and  all  the  parts  thereof  where 
the  servants  of  the  defendant  were  expected  to  jjass  and  work 
each  morning  before  the  employees,  including  tlie  phiintitf, 
were  permitted  to  enter  it,  and  who  visited  the  said  portion  of 

the  mine,  known  as  the   room  or  entry  of  the 

south    west   passageway   or   long 

wall,  before  the  employees  of  the  defendant  were  permitted  to 
enter  it,  and  who  did  on  the  said  dates  inspect  that  portion  of 

the   mine,    known    as   the    room    of    the    south, 

west  passageway  or  long  wall,  and  the  part  of 

the  mine  adjacent  thereto,  and  as  evidence  of  his  visit,  inscribe 

on  the  wall  of  the  said room  of  the  south, 

west  passageway  or  long  wall  and  month  and  the  day  of  the 
month  of  his  visit,  and  who  had  previous  to  that  date,  when 
accumulation  of  gas  had  been  discovered  in  said  room  or  entry 
placed  a  conspicuous  mark  thereat,  as  notice  to  all  men  to 
keep  out,  and  who  at  once  reported  the  conditions  of  the  said 
room  to  the  mine  manager;  but  the  said  defendant  disregard- 
ing its  duty  in  this  behalf  carelessly  and  negligently  failed 
so  to  do;  and  the  said  defendant  knowing  the  said  conditions 
were  unsafe,  permitted  divers  persons,  then  servants  of  the 
defendant,  including  the  plaintiff,  to  enter  the  said  mine  to 
work  therein,  otherwise  than  under  the  direction  of  the  mine 
manager,  before  the  said  conditions  had  been  made  safe. 

6.  And  that  it  then  and  there  also  became  and  was  the  duty 
of  the  defendant,  by  reason  of  the  statute  in  such  case  made 
and  provided,  namely,  section  . . . .,  chapter  93,  Kurd's  Statute 
. . . .,  to  employ  a  mine  examiner  to  visit  the  mine  each  morn- 
ing before  the  men  were  permitted  to  enter  it,  and  to  inspect 
all  parts  of  the  said  mine  where  the  men  were  expected  to 

pass  or  to  work,  including  the  said room  or  entry 

of  the south,  west  passageway  or 

long  wall,  and  the  parts  adjacent  thereto,  and  to  observe 
whether  there  were  any  recent  falls  or  obstructions  in  said 
room,  entries  or  roadways,  adjacent  thereto,  or  accumula- 
tions of  gas  or  other  unsafe  conditions,  as  above  previously 
mentioned,  in  that  part  of  the  said  mine,  known  as  the  room 


PERSONAL  INJURIES  ^87 


of  the  south west  pasageway,  and 

as  the  evidence  of  his  examination  of  the  said  place   it  was  ttie 
duty  of  the  mine  examiner  to  inscribe  On  the  walls  thereof 
the  month  and  the  day  of  the  month  of  his  visit    and  when 
the  accumulation  of  gas  was  discovered  m  the  said  loo^  or 
entry,  it  was  the  duty  of  the  mine  examiner  to  place  a  con- 
spicuous mark  thereat,  as  notice  to  all  men  to  keep  out,  and 
to  report  his  finding  to  the  mine  manager,  and  it  was  the 
duty  of  the  mine  examiner  after  making  such  inspection  to 
make  a  daily  record  of  the  condition  of  the  mine,  as  he  found 
it,  in  a  book  kept  for  that  purpose;  and  V^^s^^^^^,  ^^^.^y.  ^^ 
the  defendant  to  preserve  said  book  m  the  office  foi^  the  infor- 
mation of  the  said  defendant,  the  inspector,  and  all  other  per- 
sons interested;  and  it  was  the  duty  of  the  mine  examiner 
to  make  this  record  in  the  said  book  each  looming  befoie  the 
servants  of  the  said  defendant,  including  the  Pla"^tlft^^ere 
permitted  to  descend  into  the  mine,  as  by  the  statute  of  the 
state  of  Illinois  in  such  ease  made  and  provided,  namely   sec- 
tion chapter  93,  Kurd's  Statute ;  but  said  defend- 
ant disregarding  its  said  duty  in  this  behalf  did  not  have  a 
mine  examiner,  who  immediately  prior  to  the  date  ot  .    ...  . .  . 

19       daily  visited  the  said  mine,  and  all  places  therein 
where  the  men  were  expected  to  pass  or  work,  including  the 

part  known  as  the    room  of  ^h^    • -yv:  V^'r;; 

south  .  . .  •  west  passageway,  and  examined  the  same 

as  required  by  the  statute  in  such  case,  and  who  made  a  daily 
record   of  the   conditions   of   the  mine   as  he  found   it,   in  a 
book  kept  for  the  purpose;  but  the  said  mine  examiner  tailed 
in  his  dailv  reports  of  the  said  mine  on  and  for  a  long  time 
prior  to  the  said  ....  day  of  ..... .  .,19.      to  make  a  record 

of  the  conditions,  as  he  found  them  in  that  portion  of  the 

mine  known  as  the   room  of  the    .      ... ....... 

south  west  passageway ;  and  the  defendant  wholly 

failed  to  keep  such  record  of  the  condition  of  the  said  portion 
of  the  mine  for  said  dates  aforesaid,  in  the  office  for  the  infor- 
mation of  the  defendant,  the  inspectors,  and  all  other  persons 
interested;  and  the  examiner  did  not  make  the  dailj  record 

on  the  said   ....   day  of   ,  19..,  as  required  by  the 

statute,  before  the  plaintiff  was  permitted  to  descend  into  the 

""'ll'd  that  while  the  said  plaintiff  was  thus  engaged  in  about 
the  said  room  or  entry  wherein  the  gas  (sic)  had  accumulated 
and  in  which  in  the  due  course  of  his  employment  he  was 
reciuired  by  the  defendant  to  unload  this  dirt  slate,  stone, 
lid  other  material,  and  while  he  was  ignorant  of  the  dangerous 
condi  on  of  the  siid  mine  by  reason  of  the  defendant's  neg- 
ligence aforesaid,  and  while  the  plaintiff  was  using  due  care 
and  caution  in  and  about  his  work  of  unloading  the  car, 
aforesad  under  the  directions  of  the  defendant,  guided  by  the 
Ught  of  the  customary  miners'  torch  or  light  worn  m  his  cap 


988  ANNOTATED  FORMS  OF   PLEADING   AND   PRACTICE 

for  the  purpose  of  givng  light  in  the  proper  performance  of 
his  duties,  the  poisonous,  inllammable  and  explosive  gas  (sic), 
aforesaid,  which  had  accumulated  in  the  said  room  or  entry, 

known  as  the room  of south, 

west,  by  reason  of  the  defendant's  negligence  as  aforesaid, 
became  ignited  and  exploded  with  great  violence  from  the 
torch  required  by  defendant  to  be  worn  by  the  plaintiff; 
whereby  plaintiff  was  greatly  and  grieviously  burned,  injured, 
bruised,  both  internally  and  externally;  that  the  plaintiff's 
head,  face,  arms  and  hands  were  thereby,  then  and  there 
severely,  dangerously  and  permanently  injured  and  the  plain- 
tiff's sense  of  sight  was  then  and  there  and  thereby  dangerously 
and  permanently  impaired ;  and  the  plaintiff  was  otherwise 
severely,  dangerously  and  permanently  injured  both  internally 
and  externally,  and  has  been  sick,  sore,  and  injured  from  the 
time  of  such  explosion;  and  he  has  thereby  suffered  great 
bodily  pain  and  mental  anguish  and  still  is  languishing  and 
intensely  suffering  in  body  and  mind,  and  in  future  will  con- 
tinue to  suffer  from  said  injuries  for  the  rest  of  his  natural 
life ;  and  is  hindered  from  attending  to  his  usual  business  affairs 
and  employment  and  will  be  hindered  from  attending  to  his 
employment  for  the  rest  of  his  natural  life,  in  consequence 
thereof ;  and  by  means  of  the  premises  the  plaintiff  was  forced 
to  and  did  then  and  there  lay  out  divers  sums  of  money  in  and 
about  endeavoring  to  be  cured  of  said  hurts  and  injuries  occa- 
sioned, as  aforesaid.    Wherefore,  etc. 

(West  Virginia) 

For  this,  to  wit,  that  before  and  at  the  time  of  the  committing 

of  the  grievances  hereinafter  mentioned,  to  wit,  on  the 

day  of ,  19. .,  the  defendant  was  the  owner  and  oper- 
ator of  a  certain  coal  mine,  in  the  county  of afore- 
said engaged  in  mining  coal  and  manufacturing  coke ;  that 
said  plaintiff  on  the  day  and  year  aforesaid  was  in  the  employ 
of  the  said  defendant,  then  and  there  engaged  in  the  v/crk 
and  labor  of  mining  coal  in  said  mine,  and  loading  same  into 
mining  cars  of  the  said  defendant,  and  in  the  said  employment 
of  the  said  plaintiff,  and  in  the  discharge  of  his  duty  in  that 
behalf  it  became  and  was  necessary  for  the  said  plaintiff  to  go 
into  the  entries,  headings  and  working  places  of  said  mine  to 
dig,  mine  and  load  coal  as  aforesaid ;  that  said  defendant  then 
and  there  knowing  that  said  mine  generated  tire  damp  gases 
and  other  dangerous  gases  in  dangerous  quantities,  and  that 
the  same  accumulated  and  existed  in  the  entries  of  the  said 
mine,  negligently  failed  to  employ  a  competent  fire  boss ;  neg- 
lected and  failed  to  keep  at  said  mine  safety  lamp  or  lamps 
as  required  by  law;  failed  to  have  said  mine  examined,  and 
to  notify  its  employees  of  the  accumulation  and  existence  of 
said  fire  damp  and  other  dangerous  gases  in  said  mine ;  negli- 
gently failed  and  refused  to  ventilate  said  mine ;  negligently 


PERSONAL  INJURIES  989 


failed  and  refused  to  provide  the  necessary  traveling  ways,  oiit- 
ett  and  other  means  of  escape  from  said  mine,  there  bemg  more 
thai  twenty  persons  employed  therein;  and  negligently  failed 
to  provide  ample  means  of  ventilation  and  to  cause  air  to  be 
circulated  through  the  said  entries,  headings  and  working 
places  of  said  mine  so  as  to  dilute,  render  harmless  and  carry 
off  said  dangerous  and  noxious  gases,  all  of  which  was  then  and 
there  the  duty  of  the  said  defendant. 

And  the  plaintiff  says  that  the  fire  damp  and  other  danger- 
ous  gases,  which  had  been  carelessly,  ^^gl^^^^/y^^.^^^^.Y^ 
ingly  permitted  to  gather  and  accumulate  and  exist  thei  em 
by  the  said  defendant  as  aforesaid,  without  the  knowledge  of 
the  said  plaintiff,  exploded  with  great  power  and  violence, 
and  ignited  and  burned  with  great  heat  in  and  about  where 
the  said  plaintiff  was  engaged  in  the  discharge  of  his  duties  as 
such  employee  as  aforesaid;  by  means  whereof,  he  the  said 
plaintiff,  was  then  and  there  at  the  county  aforesaid  bruised, 
wounded,  burned,  suffocated  and  injured 

And  whereupon  the  plaintiff  avers  that  by  the  reason  of  the 
premises  and  matters  and  things  hereinbefore  alleged  and  by 
virtue  of  the  statute  in  such  case  made  and  provided  an 
action  has  accrued  to  him  to  have  and  demand  of  and  from 
the  said  defendant,  for  and  by  reason  of  said  grievances 
wrongs  and  injuries  in  this  declaration  mentioned,  damages 
in  the  sum  of dollars.-'^^ 

1581  Hole  ungfuarded,  Narr.  (W.  Va.) 

For  this,  to  wit,  that,  on  the  ....  day  of •' ^9;  •' ^V^ 

defendant  was  and  now  is  the  owner  and  operator  of  certain 

coal  mines  and  coal  works  in  the  county .,   vvesi 

Virginia,  known  as  the coal  mines  or  coal  works 

and  was  then  and  there  engaged  in  operating  said  mines,  m 
mining,  marketing  and  removing  the  coal  from  said  mines 
aid  in  such  operations  and  incident  and  appurtmant  thereto 
and  in  furtherance  thereof  defendant  had  constructed  tram- 
ways, tracks,  cars,  tipples,  entries,  testles  and  other  appur  e- 
nances,  fixtures  and  appliances  thereto  necessary  in  the  min- 
ing aid  removal  of  said  coal,  and  among  other  appliances  and 
appurtenances  of  the  mines  aforesaid  of  the  defendant,  def end- 
a  t  kept  and  maintained  a  track  from  its  mam  entry  of  sa  d 
n  ines  through  and  out  of  said  main  entry,  passing  out  of  said 
e  try  at  the  mouth  thereof,  known  as  the  "bank-mouth 
and  from  thence  a  short  distance  to  its  bank  tipple,  where 
coal  is  unloaded  or  dumped  from  the  small  cars  coming  out  of 
said  baX  into  other  cars  to  be  transported  to  the  river  or 
raifway  for  shipment;  that  the  small  loaded  bank  cars  are 
re  mi?ed  to  be  pushed  by  hand  from  near  said  bank-mouth 
over  said  bank  track  to  the  bank-tipple  aforesaid,  there  to 

205  Sqiiilaclie  V.  Tidewater  Coal  & 
Coke  Co.,  64  W.  Va.  337  (1908). 


990  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

be  unloaded  as  aforesaid;  that  the  ground  from  said  bank- 
mouth  to  said  bank-tipple  is  a  steep  hill-side,  and  to  get  a 
proper  for  said  road  from  the  bank-mouth  to  the  bank-tipple, 
trestle  work  has  been  constructed  Avhich  causes  said  tracks 
to  be  elevated  near  said  tipple  above  the  original  surface ;  and 
that  to  prevent  injury  to  persons  necessarily  walking  on  or 
along  said  tracks  on  said  trestle  work  and  to  prevent  their 
slipping  or  falling  through  the  same,  defendant  did  heretofore 
until  the  day  and  year  aforesaid  keep  boards  closely  laid  on 
said  trestle  work  at  a  level  with  the  bottoms  of  the  ties  on 
said  tracks  and  paralled  to  the  said  ties,  on  the  girders  or 
sills  on  which  said  ties  are  laid  thus  heretofore  affording  a 
safe,  secure  way  for  persons  who  were  reipiired  to  walk  on 
or  along  said  tracks  from  being  injured  thereby,  or  from 
falling  or  slipi)ing  through  said  trestle  between  said  ties. 

The  plaintiff  avers  that  it  was  then  and  there  the  duty  of 
said  defendant  to  exercise  reasonable  care  to  keep  the  said 
tracks  properly  underlaid  with  boards  so  that  persons  who 
were  recpiired  to  walk  over,  on  and  along  said  tracks  to  the 
bank-tipple  would  not  be  in  danger  of  slipping  or  falling,  or 
falling  through  said  trestles  between  any  of  said  ties  on  which 
said  tracks  are  laid,  or  otherwise  be  injured  therefrom;  but 
plaintiff  avers  that  defendant  did  on  the  day  and  year  afore- 
said allow  and  have  an  opening  to  be  made  in  the  boards  along 
and  under  said  tracks,  by  a  removal  of  boards  therefrom, 
thereby  creating  great  danger  of  slipping  through  or  falling, 
to  those  persons  Avho  were  re(iuired  to  walk  over,  on  or  along 
said  tracks,  which  removal  of,  and  opening  in,  said  boards  ren- 
dered said  tracks  dangerous,  defective  and  insecure  and  unsafe 
to  persons  reciuired  to  walk  upon  them  as  aforesaid,  and  of 
which  the  plaintiff  did  not  have  knowledge  or  notice. 

That  on  the  day  and  year  aforesaid  plaintiff  was  in  the 
emplov  of  said  defendant  as  a  laborer  then  and  there  engaged 
in  pushing  the  small  bank  cars  from  near  said  bank-mouth 
over,  along  and  on  said  tracks  to  the  bank-tipple,  there  to  be 
dumped  or  unloaded  as  aforesaid;  that  in  said  work  of  push- 
ing said  cars  on,  over  and  along  said  tracks,  plaintiff*  was 
required  to  walk  on,  over  and  along  the  said  tracks,  behind  the 
cars  or  at  the  side  thereof  on  the  ends  of  said  ties,  necessarily 
being  in  a  position  to  obstruct  from  plaintiff's  view  the  tracks 
aforesaid,  so  often  as  it  became  necessary  to  push  from  the 
bank-mouth  the  loaded  cars  aforesaid;  that  on  the  day  and 
year  aforesaid  plaintiff  was  so  employed  by  defendant  and 
was  at  the  said  time  pushing  loaded  bank  cars  on,  over  and 
along  said  tracks  from  said  bank-mouth  toward  said  tipple, 
and  while  then  and  there  so  employed  and  necessarily  walk- 
ing along,  over  and  on  said  tracks  and  without  fault  of 
plaintiff,  by  reason  of  the  opening  made  in  said  walk-way  by 
the  removal  by  defendant  of  the  boards  aforesaid  from 
between  said  ties,   and  by  reason  of  unsafeness,   insecurity. 


PERSONAL   INJURIES  991 

defectiveness  and  danger  resulting  from  the  removal  of  said 
boards  and  of  the  opening  made  by  such  removal,  which  defend- 
ant well  knew  and  of  which  plaintife  did  not  know,  plaintiff 
did  slip  and  fall  partly  through  said  opening  and  in  such 
manner  that  plaintiff's  right  arm  was  thrown  under  the  bank 
car  which  he  was  then  and  there  pushing,  and  could  not  be 
extricated  therefrom,  and  the  wheels  of  the  bank  car  then 
and  there  passed  over  plaintiff's  right  arm,  so  crushing,  wound- 
ing, and  breaking  the  same  that  it  thereby  became  necessary 
for 'plaintiff  to  have  said  arm  amputated,  which  was  done. 

By  reason  of  which  said  injuries  resulting  from  the  unsafe- 
ness,  insecurity,  defectiveness  and  danger  of  the  tracks  and 
walk-way  aforesaid,  caused  by  the  removal  by  defendant  of  the 
boards   from   the   tracks   and   walk-way    aforesaid,    and   the 
injuries  sustained  by  the  plaintiff's  fall  caused  thereby  plain- 
tiff was  injured  not  only  by  the  wheels  passing  over  his  arm 
as  aforesaid,  but  from  the  fall  itself  and  the  blow  thereof, 
and  from  the  effects  of  said  blow  and  fall  and  from  the  effects 
of  the  said  wheels  passing  over  his  arm  and  crushing  and 
bruising  and  breaking  the  same ;  plaintiff  was  then  and  there 
greatly  bruised,  wounded,  hurt  and  injured,  both  externally 
and  internally  and  had  to  have  his  right  arm  amputated  as 
aforesaid,   and  by  reason   of   said   bruises,   woundings,   hurts 
and  injuries  plaintiff  was   and   is   pennanently   and   forever 
disabled  and  prevented  from  following  and  pursuing  his  usual 
business,  being  that  of  laborer,  and  from  performing  any  labor 
whatever;   that  by   reason   of   said   injuries   plaintiff  became 
and  is  sick,  sore,  lame  and  diseased  and  has  so  continued  from 
the  day  and  year  last  aforesaid,  and  hath  during  all  of  said 
time  and  still  continues,  and  has  by  reason  of  said  injuries  dur- 
ing all  of  said  time  suffered  great  pain,  and  has  during  all  of 
safd  time,  been  prevented  from  attending  to  any  of  his  lawful 
business  or  labor,  and  has  been  deprived  of  and  lost  divers 
great  gains,  profits  and  advantages  which  he  might  and  other- 
wise would  have  derived  and  acquired;  that  he  has  also,  by 
reason  of  said  injuries,  been  obliged  to  pay  and  expend  a  large 
sum  of  money,  to  wit,  the  sum  of  $ m  endeavor- 
ing to  be  cured  of  said  bruises,  hurts  and  injuries,  and  has  paid 

large  sums  amounting  in  all  to  $ for  care   and 

nursing  him  in  his  sickness  and  disabilities  aforesaid,  and  has 
been  compelled  to  expend  a  large  sum,  to  wit,  the  sum  of 

^  for  medical  and  surgical  attention  caused  by 

reason  of  his  'injuries  aforesaid  and  by  the  amputation  afore- 
said And  by  reason  of  the  injuries  aforesaid  plaintiff  has 
become  permanently  crippled  and  so  injured  as  to  disable  him 
permanentlv,  and  to  prevent  him  during  his  lifetime  from 
pursuing  his  usual  calling  or  any  calling,  or  from  supporting 
himself  or  his  family. 


992  ANNOTATED   FORMS   OF   PLEADING    AND    PRACTICE 

Wherefore,  plaintiff  says  that  h.-  is  injured  iuul  has  sus- 
tained damages  to  the  amount  of  $ "** 

And  therefore  lie  brings  this  suit. 

1582  Insuflacient  light,  Narr.  (111.) 

For  that  whereas,  on,  to  wit, ,  19.  .,  the  defend- 

^jjt  was  possessed   of,   using  and   operating   a 

certain  Voai'mine  at county,  Illinois,  commonly 

called  mine  number ,  and  the  planitiff  was  a  mnier 

employed  by  the  dflVndant  working  in  said  mine;  that  the  stat- 
ute of  the  state  of  Illinois  then  and  there  in  force  provided  as 
follows:  (Set  out  section  or  provision). 

And  the  plaintiff  further  avers  that  the  defendant  not  regard- 
ing its  duty  and  the  provisons  of  the  statute  in  that  behalf, 
wilfully   failed   to   comply    with    the   said    provisions   of   the 

statute,  and  by  means  thereof,  on,  to  wit ,  19.  ., 

the  said descended  into  said  mine  to  go  to  his 

work,  and,  while  exercising  due  care  and  caution  for  his  own 
safety,  fell  over  a  block  of  wood  there  at  the  bottom  of  said 
shaft  at  the  landing;  and  thereby  his  right  h'g  between  the 
knee  and  the  thigh  was  cruohed  and  bruised,  and  he  was  per- 
manently injured  and  confined  to  his  bed  for  a  long  time,  and 
thereafter  was  compelled  to  go  on  cruUhes  for  several  weeks, 
and  was  unable  to  do  or  perform  any  of  his  usual  work  for 
several  months,  and  lost  the  moneys  whieii  he  could  and 
would  have  earned;  and  by  means  of  said  injuries  plaintiff  suf- 
fered  great  pain  both  in  body  and  mind,  and  still  suffers  and 
will  continue  to  suffer  therefrom,  and  was  compelled  to  become 
liable  for  the  services  of  a  piiysioian.  medicine,  etc.,  while  at- 
tempting to  be  cured  of  his  said  injuries;  and  by  means  thereof 
and  on  account  of  said  injuries  afore.said,  plaintiff  has  suffered 

loss  and  damage  to  the  amount  of dollars,  and 

therefore  he  brings  this  suit,  etc. 

1583  Props,  action 

The  mine  operator  is  liable  for  an  injury  sustained  by  a 
miner  by  reason  of  the  operatm-'s  failure,  after  ckmand  of  the 
same  by  the  miner,  to  supply  props,  cap-pieces  and  cross-bars 
for  the  purpose  of  securing  the  over-hanging  roof  of  the  mine, 
although  the  mine  manager,  after  a  visit  to  the  mine,  was  of 
opinion  that  the  timbers,  props,  and  caps  were  sufficient.^o" 

20RPriddy  v.  Black  Betsev  Coal  &  -o^  Sprincrfield  Cnal  Minitig:  Co.  v. 

Mining  Co.,  64  W.  Va.  242  (1908).         Gedutis,  227  111.  i»,  11    (1907). 


PERSONAL   INJURIES 


993 


1584  Props,  Narr.  (111.) 

For  that  whereas,  the  defendant  was,  on,  to  wit,  the  day  of 

and  still  is  and  was  for  a  long  time  prior  thereto, 

the  owner  of  and  was  operating  a  coal  mine  in  .  . . •  • 

county,  Illinois;  said  coal  mine  consisting,  among  other  parts, 
of  a  shaft,  underground  passages,  passage-ways,  entries,  rooms, 
Dinars,  etc. ;  that  on  said  day  the  plaintitf  was  working  lor 
and  in  the  emplov  of  the  defendant,  as  a  coal  miner  or  coal 
ditrger  in  the  defendant's  said  mine  and  had  been  so  working 
for  and  in  the  employ  of  the  defendant  for  some  time  prior  to 

^^ And^tiie  plaintiff  avers  that  it  then  and  there  became  and 
was  the  dutv  of  the  defendant  to  have  provided  plaintiit  with 
a  sufficient  supply  of  props,  caps  and  timbers,  delivered  on  the 
miner's  cars  at  the  usual  place,  as  nearly  as  possible  in  suitable 
lengths  and  dimensions  for  the  securing  of  the  root  ot  the 
working  place  of  the  plaintiff  on  the  day  aforesaid ;  that  he, 
the  plaintiff  had  prior  to  the  injury  herein  complained  ot  made 
demand  of  defendant's  mine  manager,  for  props  caps  and 
timbers-  yet,  the  defendant  wilfully  and  knowingly  tailed  and 
neglected  to  provide  plaintiff  with  a  sufficient  supply  of  props, 
caps  and  timbers,  on  the  day  aforesaid,  after  demand  therefor 
as  aforesaid,  delivered  on  the  miner's  cars  at  the  usual  place, 
as  nearly  as  possible  in  suitable  lengths  and  dimensions  tor 
the  securing  of  the  roof  in  plaintiff's  working  place,  as  is  by 
statute  made  and  provided;  whereby  and  by  reason  of  the 
premises  and  by  reason  of  the  wilful  failure  and  neglect  on 
the  part  of  the  defendant  a  large  quantity  of  slate,  rock  and 
dirt  in  plaintiff's  working  place  fell  from  the  roof  of  said 
place  upon  and  against  the  plaintiff  and  he  was  thereby  and 
by  reason  of  the  premises  injured  as  hereinafter  alleged. 

2  And  the  plaintiff  avers  that  on  the  day  aforesaid  and 
for  some  time  prior  thereto,  there  was  and  had  been  a  danger- 
ous condition  existing  in  plaintiff's  said  working  place,  con- 
sisting of  a  large  quantity  of  loose  slate,  rock  and  other  sub- 
stances forming  and  composing  a  part  of  the  top  or  root  ot 
plaintiff's  said  working  place,  of  which  dangerous  condition 
of  said  mine  the  defendant  knew  or  by  the  exercise  of  reason- 
able care  should  have  known;  that  on  the  day  aforesaid  and 
on  the  morning  of  said  day,  before  plaintiff  entered  said  mine 
to  work  therein,  said  dangerous  condition  aforesaid  then  ex- 
isted- that  defendant  wilfully  permitted  plaintiff  to  enter 
said  mine,  and  wilfully  failed  and  neglected  to  prevent  or 
attempt  to  prevent  plaintiff  from  entering  said  mine  and  said 
working  place  on  the  day  aforesaid;  but,  on  the  contrary  wil- 
fullv  suffered,  permitted  and  allowed  the  plaintiff  to  enter  said 
working  place  to  work  therein,  without  the  directions  or  with- 
out being  under  the  direction  of  the  mine  manager,  betore 
said  dangerous  place  was  made  safe  and  while  such  dangerous 


994  ANNOTATED   FORMS   OP    PLEADING    AND    PRACTICE 

place  then  existed,  whereby  and  by  reason  of  the  premises, 
plaintiff  entered  his  said  working  plaee  on  the  day  aforesaid 
to  work  therein. 

And  while  so  working  therein  he  was  struck  by  said  loose 
rock,  slate  and  other  substances  which  fell  from  the  roof  afore- 
said,'and  which  fell  upon  and  against  the  plaintiff;  and  plain- 
tiff was  thereby  and  by  reason  of  the  premises  crushed, 
bruised,  and  wounded,  the  bones  of  his  legs  broken,  the  bones 
of  his  feet  and  ankles  crushed,  broken  and  otiier  bones  of  his 
body  broken  and  crushed,  his  ankh'  joints  sprained,  strained 
and  the  ligaments  of  his  ankle  and  legs  strained  and  twisted; 
and  he  was  otherwise  severely  and  permanently  injured,  and  he 
became  and  was  sick,  sore,  lame  and  disordered  and  disfigured, 
and  so  remained  from  thence  hitherto;  and  by  reason  thereof 
has  suffered  and  still  suffers  great  piiysieal  and  mental  pain 
and  anguisii ;  and  he  was  hindered  aiul  prevented  from  attend- 
ing and  transacting  his  business  and  affairs  and  was  compelled 
to  and  did  lay  out  and  become  liable  for  large  sums  of  money, 

to  wit,  dollars,  in  and  about  endeavoring  to  be 

healed  and  cured  of  his  said  injuries;  and  he  will  thereby  con- 
tinue to  suffer  pain  and  loss;  wherefore,  etc. 

(West  Virginia) 

For  this,  to  wit,  that  at  and  before  the  time  of  the  com- 
mission of  the  grievances,  wrongs  and  injuries  by  the  defend- 
ant hereinafter  complained  of,  to  wit,  on  or  about  the 

day  of ,  19 . . ,  in  the  said  county  of , 

the  said  defendant  was  the  owner  and  operator  of  a  certain 

coal  mine  in  the  said  county  of and  was  then  and 

there  operating  the  said  mine,  in  which  said  mine  there  were 
main  drifts  and  entries,  air  courses,  passage  ways,  main  head- 
ings, cross  headings,  etc.,  under  the  surface  of  the  earth,  and 
extending  from  the  main  drift  and  entry  of  said  mine  were 
many  lateral  drifts  or  rooms  in  the  interior  of  the  said  mine, 
in  which  said  mine  the  defendant  carried  on  the  business  of 
mining  and  excavating  large  (juantities  of  coal  which  was 
mined,  excavated  and  taken  therefrom  by  the  said  defendant 
and  its  servants  and  employees. 

That  the  said  defendant  in  conducting  its  said  business  of 
mining  and  excavating  coal  as  aforesaid,  employed  a  large 
number  of  men  Avho  worked  in  its  said  coal  mines  for  the  said 
defendant  at  its  instance  and  request  for  hire  and  reward 
to  them  in  that  behalf;  that  before  and  at  the  time  of  the 
committing  of  the  grievances,  wrongs  and  injuries  by  the  said 
defendant  hereinafter  complained  of,  the  plaintiff  was  in  the 
service  and  employ  of  the  said  defendant  as  a  laborer  in  its 
said  mine  in  the  county  aforesaid,  and  was  engaged  in  digging, 
mining,  excavating  and  removing  coal  for  the  said  defendant 


PERSONAL  INJURIES 


995 


in  its  said  mine  aforesaid  at  the  request  and  solicitation  of  the 

said  defendant.  ,      ■,   ^       e  ^u         a 

And  it  then  and  there  became  and  was  the  duty  ot  tne  saia 
defendant  to  furnish  to  the  plaintiff  a  reasonably  safe  place 
wherein  to  work  while  so  employed  as  its  servant  and  laborer 
in  its  said  mine  as  aforesaid  and  to  use  all  due  care,  caution 
and  diligence  to  prevent  dangers,  accidents  and  injuries  to  the 
said  plaintiff  while  so  engaged  as  a  servant  and  laborer  m  the 
said  defendant's  mine  as  aforesaid,  and  to  cause  all  loose  coal, 
slate  and  rock  overhead  in  the  rooms,  air  courses,  drifts,  pas- 
sage ways  and  working  places  in  said  mines  to  be  removed  or 
carefully  secured,  and  to  see  that  its  said  mine,  drifts,  air 
courses,  rooms,  passage  ways,  etc.,  were  kept  in  a  reasonably 
safe  condition  so  as  to  prevent  danger  and  accident  to  persons 
employed  in  said  mine  and,  especially  to  the  plaintiff,  who  \yas 
then  and  there  employed  by  the  defendant  m  its  said  mine 
as  its  servant  and  laborer. 

That  the  said  defendant  wholly  disregarding  and  neglect- 
ing its  duty  in  this  behalf  did  not  use  all  due  care,  reasonable 
and  proper  means  and  precaution,  nor  any  means  and  precau- 
tion whatever,  to  provide  a  safe  and  convenient  place  for  the 
said  plaintiff  to  work  in ;  that  the  said  defendant  did  not  use 
due  care  and  means  nor  take  reasonable  and  proper  precau- 
tion to  cause  all  loose  coal,  slate  and  rock  overhead  in  the 
rooms,  air  courses,  drifts,  passage  ways  and  working  places  in 
its  said  mine  to  be  removed  or  carefully  secured  so  as  to  pre- 
vent danger  and  accident  to  persons  employed  in  said  mine,  and 
especially  to  this  plaintiff  while  so  employed  in  said  mine  by 
the  defendant  as  its  servant  and  laborer  therein;  but  on  the 
contrary   thereof,  the  said   defendant   did  unlawfully,   negli- 
gentlv,  wrongfully  and  knowingly,  refuse  to  furnish  to  the 
said  plaintiff'  while  in  its  employ  as  aforesaid,  a  reasonably  safe 
place  in  which  to  work  and  refused  to  cause  all  loose  coal,  slate 
and  rock  overhead  in  the  rooms,  air  courses,  drifts,  passage 
ways  and  working  places  in  said  mine  to  be  removed  or  care- 
fully secured  so  as  to  prevent  danger  and  accidents  to  the 
said  plaintiff  while  so  employed  as  a  servant  in  the  said  mine 
of  the  defendant;  and  the  said  defendant  did  unlawfully,  un- 
skillfully,  wrongfully  and  knowingly  permit  loose  coal,  slate 
and  rock  to  remain  overhead  in  the  rooms,  air  courses,  drifts, 
passage  ways  and  working  places  in  its  said  mine  without 
removing  the  same  or  causing  it  to  be  safely  secured  so  as 
to  prevent  danger  and  accident  to  the  plaintiff,  as  aforesaid, 
while  so  working  in  its  said  mine,  as  aforeaid,  of  which  said 
negligent  and  unskillful  acts  of  the  said  defendant,  said  plain- 
tiff was  wholly  ignorant. 

2.  Also  it  became  and  was  the  duty  of  the  said  defendant 
in  order  to  better  secure  the  safety  of  its  said  mine,  drifts, 
entries,  air  courses,  passage  ways,  rooms,  etc.,  for  the  security 
and  safety  of  persons  employed  therein,  to  employ  a  competent 


996  ANNai.  .   -.     -     r.MS   OF    FLiLVDING    AND    rKACTICE 

and  practical  Lnsi<i'-  or  he  called  '•mining  boss,"  who 

shall  be  a  citizen  and  ,:  ienced  coal  miner  or  a  person 

having  two  years'  experifuce  in  a  coal  min^. 

Yet,  the  said  defendant  wholly  disregarding  its  duty  in  this 
respect,  knowingly,  negligently  and  unlawfully  refused  and 
failed  to  employ  a  competent  inside  overseer,  to  be  known  as 
and  called  a  mining  boss,  in  order  to  better  secure  the  safety 
of  its  said  mine  as  ;  1,  that  ^'  n,  to  wit,  one  .... 

,  so  •  i  by  th*  -ndant  as  aforesaid 

as  insride  overseer  and  miiiing  boss  wa*  incapable  and  incom- 
petent to  discharge  the  duties  re<|iiired  of  him  by  law  and  was 
careless,  indifferent  and  negligent  in  the  discharge  of  his  duties 
as  said  inside  overseer  and  mining  boss  as  aforesaid ;  all  of 
which  was  then  and  there  well  known  to  the  said  defendant 
and  was  unknown  to  this  plaintiff. 

And  the  plaintiff  says  that  by  reason  of  the  said  careless, 
negligent  and  wrongful  acts  of  th^  said  defendant  in  permit- 
ling  said  loose  coal,  slate  and  rocks  to  remain  overhead  in 
the  rooms,  air  courses,  drifts,  pa-ssage  ways  and  working  places 
in  said  mine  and  in  failing  and  n-fusing  to  cause  the  same  to 
be  removed  or  carefully  secured  so  as  to  prevent  danger  and 
accident  to  the  plaintiff  while  in  the  employ  of  the  said  defend- 
ant as  a  laborer  in  its  mine  a^  aforesaid,  and  by  reason  of  the 
failure  and  refusal  to  employ  a  competent  inside  overseer,  to 

wnt,  on  the day  of ,  19 . . ,  in  the 

said  county  of le  the  said  plaintiff 

was  engaged  in  the  ser\'ice  of  the  s  ndant  as  a  laborer 

in  its  said  mine  as  aforesaid  and  while  said  plaintiff  was  using 
due  and  reasonable  care  for  his  own  safety  while  so  employed 
in  said  defendant's  mine,  as  aforesaid,  and  without  any  knowl- 
edge on  the  part  of  th<-  '  '  iff  of  the  dangers  to  which 
he  was  then  and  there  :  without  any  negligence  or 

default  upon  the  part  oi  said  plaintiff,  a  large  piece  of  loose 
slate,  hanging  overhead  in  said  mine  at  the  place  where  the 
said  plaintiff  was  then  and  there  at  work  in  the  lawful  and 
proper  discharge  of  his  duty  as  a  ser>'ant  of  the  defendant 
aforesaid,  fell  upon  the  said  plaintiff,  without  any  want  of 
care  or  negligence  on  his  part,  and  that  he  was  thereby  greatly 
brui-sed,  mangled  and  injured  upon  his  legs,  hips,  arms,  head, 
and  body  and  has  sustained  permanent  and  lasting  injuries  by 
reason  thereof,  and  has  suffered  great  pain  and  anguish  and 
does  still  suffer  great  pain  by  reason  of  the  injuries  inflicted 
as  aforesaid,  and  that  he  has  been  compelled  to  incur  great 
expense  in  his  effort  to  be  cured  and  healed  of  his  said  injuries 

and  hurts  incurred  as  aforesaid,  to  wit,  the  sum  of 

dollars. 

Wherefore  an  action  hafh  accrued  to  the  said  plaintiff  to 
have  and  demand  from  the  said  defendant  for  and  by  reason 
of  the  wrongs,  injuries  and  grievances  heretofore  complained 
of,  and  the  plaintiff  avers  that  by  rea.son  of  the  matters  and 


PBR90KAL  DCJUKIES  997 

things  heretofore  alleged,  the  plaintiff  has  sustained  damages 

to  the  amount   of   dollars,  and  therefore  he 

sues. 

1585  Tools,  machinery  defective,  action 

No  action  for  the  violation  of  sections  16  and  IS  of  the  Min- 
ing act  can  be  bassed  upon  defective  tools  or  machinery  -which 
are  not  a  part  of  the  physical  condition  of  the  working  plaoes 
of  the  mine  making  that  part  dangerous.-*^* 

15S6  Tramway  track,  oonstrBCliMi,  action 

The  laying  of  a  track  near  the  rib  of  a  mine  is  not  a  violaticm 
of  the  statutory  provision  concerning  the  construction  of  tram- 
way tracks  in  the  run-around,  if  a  sufficiently  clear  space  or 
place  of  refuge  at  the  working  place  of  the  men  is  left  on  either 
side  of  the  track.-'^'* 

1587  Trapper,  ventilation,  actioa 

Mine  owners  or  opverators  are  liable  for  an  injury  resulting 
from  the  failure  to  krt-p  ai.  n  and  close  the  door 

used  in  guiding,  directing ,  .arrent  in  a  mine,-^* 

Any  doorway  which  is  essential  to  the  vt-ntilation  of  any  portion 
of  the  face  of  the  coal  where  miners  are  at  work  and  which  is 
in  frequent,  regular  and  habitual  use  for  the  hauling  of  cars 
while  coal  is  being  mined,  is  a  principval  doorway  within  the 
meaning  of  the  statute;  and  whether  a  particular  doorway  is 
within  the  foregoing  rule  is  a  question  of  fact.  The  owner  or 
op»erator  of  a  coal  mine  is  eharg^  with  knowledge  which  of 
the  doorways  of  the  mine  is  a  principal  doorway,  and  the  failure 
to  provide  a  trap|>er  at  a  principal  doorway  constitutes  a  wilful 
violation  of  the  statute.*^^ 

1588  Trapper,  want  of,  Narr.  (EL) 

For  that  whereas,  the  defendant,  the ,  a  cor- 
poration. organi7ed  and  doing  business  under  and  by  virtue  of 

the  laws  of  the  state  of  Illinois,  was,  on.  to  wit,  the 

day  of 19. .,  the  owner  and  opverator  of  a  cer- 

«>s  Pate  T    Blair-Bic  MtiddT  Coal  "«•  Mauison  Coal  Oft.  v.  Hares,  215 

Oft.  -.=^i:  ni.  i?>.  ei\<  i\H  (i^iiv,     ni.  siw  6i?6,  ci::  (i9cw-\ 

^         ,^    ,^-.    ir-  *  ifk,%a     m  \  :^i  Karkowski  t.  La  Sail*  Ootrntr 

S«^  16,  IS,  Miiimjr  a^t  lf»a?  ^TT1.\      ^^^^^  ^.^^  ^.^^  ^,^^  j^L   195,  19S, 

swOoolt  T.  "Ru:  MudaT-OartMxill*      ;ic><>    (iQH);   CL  f.  9««C   19,  Ifiming 

MiBiBi:  0-ft.,  2*9  ni.  49.  act   1-Q09. 


998  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

tain  coal  mine  located  in  the  eastern  extremity  of  the  city  of 

county  of and  state  ot  Illinois, 

known"is 'the  " "  ^vhich  said  coal  mine  was 

operated  by  means  of  a  perpendicular  shall  extending  many 
feet  down  below  the  surface  of  the  earth  and  by  mam  entry- 
ways  and  passageways,  leading  at  riglit  angles  away  from  the 
bottom  of  said  perpendicular  shaft,  and  by  otln-r  passageways 
and  entryways  with  rooms  thrown  off  the  same,  driven  off  of 
and  leading  away  from  said  main  entryways,  into  and  up  to 
the  face  of  the  coal  or  workings  where  the  various  miners  then 
in  the  employ  of  the  said  defendant  were  mining  or  digging 

And  whereas  the  plaintiff  on  the  day  aforesaid,  and  for 
sometime  prior  thereto  was  in  the  employ  of  the  said  deft'iulant 
in  and  about  its  said  coal  mine  as  a  driver,  and  in  and  about 
the  performance  of  his  duties  in  that  capacity  for  the  said 
defendant,  it  became  and  was  the  duty  of  tlie  paintiff  to  haul 
cars  loaded  with  coal  by  the  said  various  miners  who  were 
then  and  there  mining  said  coal  in  the  said  entryways  and 
rooms,  through,  over  and  upon  a  certain  pair  of  tracks  then 
and  there  laid  along  and  upon  the  said  t-nlryways  and  i)assage- 
ways  that  lead  from  the  face  of  the  coal  out  to  the  bottom  of 
the"  said  perpendicular  shaft  where  said  cars  were  brought  for 
the  purpose  of  being  hoisted  to  the  surface;  that  in  order  to 
perform  the  duties  assigned  to  him,  plaintiff  was  supplied  by 
the  said  defendant  with  a  certain  mule  and  with  certain  coal 
cars,  such  as  are  ordinarily  used  for  the  conveyance  of  coal 
in  mines  of  this  character;  all  of  which  were  then  and  there 
the  property  of  the  said  dcft'iulant. 

And  the  plaintiff  avers  that  on  the  day  aforesaid,  among 
other  entryways  and  passageways,  into,  over  and  upon  which 
the  plaintiff  was  compelled  to  go  in  the  performance  of  his 
duties  in  the  capacity  as  aforesaid,  was  a  certain  entryway 

known  as  the north  entry  off  of  the west 

entry  off  of  the  main  north  entry  in  said  shaft;  that  in  this 
said  entryway  at  or  about  the  foot  of  an  incline  or  hill  in  said 
entryway  and  about feet  from  the  head  of  said  entry- 
way,  the  said  defendant  had  and  maintained  a  certain  principal 
doorway,  constructed  of  wood  and  of  large  and  heavy  timbers, 
through  which  the  cars  loaded  as  aforesaid,  by  the  said  min- 
ers working  at  the  face  of  the  coal,  were  hauled  by  the  plain- 
tiff, when  taking  the  same  out  to  the  bottom  of  said  perpendi- 
cular shaft. 

And  the  plaintiff  avers  that  it  then  and  there  became  and 
was  the  duty  of  the  defendant,  under  and  by  virtue  of  the 
statutes  of  the  state  of  Illinois  to  have  and  maintain  at  said 
principal  doorway,  through  which  the  said  cars  were  hauled 
by  the  plaintiff,  an  attendant  or  ''trapper"  for  the  purpose 
of  opening  and  closing  said  door  when  trips  of  cars,  so  being 
hauled  by  the  plaintiff,  as  aforesaid,  were  passing  to  and  from 


PERSONAL  INJURIES  999 

the  workings  or  the  face  of  the  coal,  so  being  mined  as 
aforesaid. 

Yet,  the  defendant,  disregarding  its  duty  in  that  behalf,  on 

the  day  aforesaid,  to  wit,  on  the day  of 

19.  .,  and  for  a  long  time  prior  thereto,  to  wit,  for  a  period  of 
months,  knowingly,  deliberately,  consciously  and  wil- 
fully and  in  express  violation  of  the  statutes  of  the  state  of 
Illinois  failed  and  neglected  to  have  an  attendant  or  a  "trap- 
per" employed  and  stationed  at  the  principal  doorway  afore- 
said, for  the  purpose  of  opening  and  closing  the  said  door 
when  trips  of  cars  were  passing  to  and  from  the  said  workings 
or  the  face  of  the  coal  at  the  head  of  said  entry,  notwithstand- 
ing that  on  the  day  aforesaid,  the  plaintiff  was  compelled  to 
and  did,  in  the  performance  of  his  duty,  haul  trips  of  loaded 
coal  cars  through  said  principal  doorway. 

By  means  whereof,  the  plaintiff,  on,  to  wit,  the  day  afore- 
said while  in  the  direct  line  of  his  employment,  and  in  the  dis- 
charge of  his  duties  as  a  driver,  was  passing  along,  over  and 

upon  the  said north  entry  oft'  of  the west 

entry  off  of  the  main  north  entry,  and  while  engaged  in  haul- 
ing a  trip  of  loaded  coal  cars  from  the  workings  at  the  head 
of  said  entry,  the  jilaintift*  approached  said  principal  doorway 
and  on  account  of  the  said  deliberate,  conscious,  knowing  and 
wilful  violation  of  the  said  statutes  of  the  state  of  Illinois  by 
the  said  defendant,  in  failing  to  have  an  attendant  or  "trap- 
per" stationed  at  said  principal  doorway  for  the  purpose  of 
opening  and  closing  the  same,  when  the  said  trip  of  cars  were 
passing  to  and  from  the  said  workings  at  the  head  of  said 
entryway,  the  said  door  was  not  opened  but  remained  securely 
closed  and  fastened;  and  the  said  mule  being  driven  by  the 
plaintiff'  then  and  there  collided  with  and  ran  upon  and  against 
said  principal  door;  and  said  mule  then  and  there  tried  and 
attempted  to  force  or  push  his  way  through  the  said  prin- 
cipal door  or  doorway,  and  the  said  trip  of  cars  ran  upon  and 
against  said  mule  and  became  entangled  with  him;  and  the 
plaintiff  was  then  and  there  thrown  to  and  from  the  said  trip 
of  cars,  then  being  hauled  by  him,  as  aforesaid,  and  the 
said  mule  and  the  said  cars  then  and  there  ran  upon  and 
against  the  said  plaintiff  and  he  was  then  and  there  crushed 
and  pushed  up  and  against  the  said  door  and  the  framework 
of  said  door  and  the  side  of  said  entryway ;  and  thereby  then 
and  there  the  plaintiff  was  badly  crushed,  bruised  and 
mangled;  and  the  plaintiff's  left  leg  was  crushed  and  broken 
and  seriously  and  permanently  injured;  and  the  plaintiff's 
arms,  legs,  back,  chest  and  spinal  column  were  seriously 
crushed,  bruised  and  injured;  and  he  became  sick,  sore,  lame 
and  disorded  and  so  remained  for  a  long  time,  to  wit,  from 
thence  hitherto;  during  all  of  which  time  he  suffered  great 
pain  and  was  hindered  from  transacting  his  business  and 
affairs;  and  also  by  means  of  the  premises  he  was  obliged  to 


1000     ;\NNOTATED  FORMS  OF  PLEADING  AND  PRACTICE 

and  did  lay  out  divers  sums  of  money  amounting  to  ... . . 

dollars,  in  and  about  endeavoring  to  be  healed  of  his  said 
wounds,  sickness  and  disorder;  and  the  phiintift"  avers  that 
his  said  injuries  are  permanent.     Wherefore,  etc. 


1589  Motor  or  trolley  unsafe,  Narr.  (111.) 

For  that  whereas  the  defendant  was  heretofore,  to  wit,  on 

or  about  the day  of ,  19. .,  a  corporation, 

etc.,  and  as  such  corporation  was  possessed  of  and  operated 
and  controlled  a  certain  street  railroad  in  the  county  afore- 
said, which  was  then  and  there  laid  on  and  along  a  certain 

street  commonly  called street,  which  street  was 

then  and  there  a  public  highway;  that  on,  to  wit,  the  day  and 
year  and  at  the  county  aforesaid,  plaintiff  was  an  employee 
of  the  said  defendant  in  tlie  capacity  of  a  conductor  ui)on  a 
certain  motor  or  trolley  car  of  the  defendant,  wliich  was  then 
and  there  used  upon  and  along  said  street  railroad ;  that  on, 
to  wit,  the  day  and  year  and  at  the  county  aforesaid,  the 
defendant  was  then  and  there  possessed  of  a  certain  other 
motor  or  trolley  car,  which  was  then  and  there  used  by  the 
said  defendant  for  the  purpose  of  conveying  passengers  on 
and  along  said  street  railroad,  which  said  other  motor  or  trol- 
ley car  was  then  and  there  under  the  care  and  management  of 
divers  then  other  servants  of  the  defendant,  wlio  were  then 
and  there  driving  the  same  upon  and  along  said  street  railroad 

near  a  certain  other  street  commonly  called 

street. 

And  the  plaintiff  avers  that  it  then  and  there  became  and 
was  the  duty  of  the  defendant  to  furnish  to  its  other  servants 
as  aforesaid  a  reasonably  safe  and  proper  motor  or  trolley 
car;  but  not  regarding  its  said  duty  in  this  behalf,  the  said 
defendant  then  and  there  furnished  to  its  said  other  servants 
an  improper,  unsafe  and  defective  motor  or  trolley  car,  which 
improper,  unsafe  and  defective  condition  of  said  motor  or  trol- 
ley car  was  to  the  defendant  well  known,  or  which,  by  the  use 
of  reasonable  diligence,  might  have  been  known ;  by  reason 
whereof  the  said  motor  or  trolley  car  then  and  there,  and 
while  the  plaintiff  was  then  and  there  using  due  diligence 
for  his  own  safety,  ran  and  struck  with  great  force  and  violence 
upon  and  against  the  plaintiff. 

2.  And  the  plaintiff  further  avers  that  the  said  defendant 
furnished  to  its  other  servants,  who  were  then  and  there  in 
charge  of  said  other  motor  or  trolley  car  as  aforesaid,  an  im- 
proper, unsafe  and  defective  instrument,  commonly  called  a 
reverse  lever,  or  power  handle,  wherewith  to  operate  and  con- 
trol the  motor  or  trolley  car,  last  aforesaid ;  which  improper, 
unsafe  and  defective  condition  of  said  instrument  was  to  the 
defendant  well  known,  or  by  the  use  of  ordinary  care  might 


PERSONAL  INJURIES  1001 

have  been  known ;  and  by  reason  of  such  improper,  unsafe  and 
defective  reverse  lever,  or  power  handle,  the  said  motor  or  trol- 
ley car  then  and  there  ran  and  struck  with  great  force  and 
violence  upon  and  against  the  plaintiff,  who  was  then  and 
there  upon  said  railroad  in  the  line  of  his  duty  as  an  employee 
of  the  said  defendant  as  aforesaid,  and  who  was  then  and 
there  using  due  care  and  diligence  for  his  own  safety. 

By  means  whereof  plaintiff  was  then  and  there  thrown  with 
great  force  and  violence  to  and  upon  the  ground  there,  and 
was  thereby  then  and  there  greatly  bruised,  hurt  and  wounded, 
and  divers  bones  of  his  body  were  then  and  there  broken ;  and 
he  became  and  was  sick,  sore,  lame  and  disordered,  and  so 
remained  for  a  long  space  of  time,  to  wit,  from  thence,  hither- 
to ;  during  all  of  which  time  the  plaintiff  suffered  great  pain 
and  agony,  and  he  thereby  became  and  was  and  is  permanently 
injured,  and  was  thereby  hindered  and  prevented  from  attend- 
ing to  and  transacting  his  affairs  and  business;  and  by  means 
of  the  premises  the  plaintiff'  was  obliged  to  and  did  then  and 

there  lay  out  divers  sums  of  money,  amounting  to 

dollars,  in  and  about  endeavoring  to  be  cured  of  his  said  hurts, 
wounds  and  bruises,  occasioned  as  aforesaid.  Wherefore,  etc. 

1590  Moving'  steam  cars,  action 

An  attempt  to  get  on  or  off  a  moving  train  of  steam  cars 
without  the  direction  of  an  agent  of  the  railroad  company  is 
not  negligence  per  se  in  Illinois.  But  whether  a  person  is  guilty 
of  such  contributory  negligence  as  would  bar  his  recovery  for 
an  injury  caused  by  stepping  on  or  jumping  off  a  moving  train 
of  cars  is  a  question  of  fact  to  be  determined  by  the  jury  under 
all  of  the  attendant  and  surrounding  circumstances.212 

1591  Moving  street  cars;  action 

An  injury  caused  by  the  negligent  increase  of  speed  of  a 
slowly  moving  street  car  is  actionable,  as  it  is  not  negligence  per  se 
to  get  on  and  off  a  slowly  moving  car  propelled  by  horse-power, 
cable  or  electricity.^i^ 

1592  Nitric  acid,  workman  injured,  Narr.  (Mich.) 

For  that  whereas,  the  said  defendant  is  a  corporation  or- 
ganized under  the  laAvs  of  the  state  of  Michigan,  and  at  the 
time  of  the  committing  of  the  grievances  hereinafter  alleged 
was  engaged  in  the  manufacture  of  nitric  acid  at  its  plant  or 

212  Ardison  v.  Illinois   Central  R.  213  Chicago  Union  Traction  Co.  v. 

Co.,  249  111.  300,  302  (1911).  Hanthorn,  211  111.  367,  369  (1904). 


1002  ANNOTATED   FORMS  OF   PLEADING   AND    PRACTICE 

establishment  on avenue,  in  tlu-  city  of 

That  the  nitric  acid  so  manufactured  by  said 
defendant  is  a  dangerous  chemical  or  article  to  come  in  contact 
with,  and  when  exposed  gives  out  noxious  and  dangerous 
fumes  and  rapidly  eats  its  way  into  objects  that  it  comes  iu 
contact  with  and  renders  vessels  or  receptacles  in  which  it  is 
placed,  including  crocks  or  jars,  brittle,  so  that  a  very  slight 
jar  or  concussion  thereof  will  cause  such  crock  or  jar  to 
break  and  release  its  contents  of  nitric  acid,  more  especially 
when  such  vessel  or  receptacle  is  full  or  nearly  full.  That 
when  the  acid  comes  in  contact  with  the  body  it  burns  the 
flesh  and  rapidly  eats  its  way  therein;  all  of  which  facts  were 
then  and  there  well  known  to  said  defendant. 

That  at  the  time  of  the  committing  of  the  grievances  here- 
inafter alleged  in  one  of  the  rooms  of  said  defendant's  plant 
or  establishment  it  kept  and  maintained  a  pit  of  approximately 
the  following  dimensions:  about  eight  (8)  feet  in  length  by 
four  (4)  feet  in  width,  and  having  a  depth  of  about  five  (5) 
feet  below  the  floor  level,  which  pit  was  walled  in  by  brick, 
and  the  floor  of  which  was  up  to  a  short  time  prior  to  the  com- 
mitting of  said  grievances,  entirely  paved  with  brick,  but  in 
which  shortly  before  said  time,  said  defendant  caused  to  be 
dug  an  opening  in  the  floor  of  said  pit  along  one  side  thereof 
about  six  (6)  feet  long  by  two  (2)  feet  wide  and  of  a  depth 
of  about  two  (2)  feet,  the  sides  and  floor  of  which  it  caused 
to  be  cemented,  and  which  pit  at  the  time  of  the  committing 
of  the  grievances  hereinafter  mentioned,  contained  three  (3) 
large,  heavy  jars  or  crocks  or  receptacles  used  by  said  defend- 
ant for  storing  nitric  acid,  and  which  in  height  were  almost 
level  with  the  top  of  sai<l   [lit   and  had  a   cajiacity  of  about 

gallons  of  nitric  acid  each,  and  some  of 

which  were  at  the  time  aforesaid  partially  tilled  and  others 
nearly  full  thereof,  and  which  while  containing  acid  were  kept 
covered  to  prevent  the  noxious  fumes  from  escaping. 

That  said  pit  at  the  times  aforesaid  had  no  means  of  entrance 
or  exit  except  to  jump  in  and  climb  out  as  best  one  could  and 
was  a  dangerous  place  to  work  in,  particularly  while  said 
jars,  crocks  or  receptacles  were  being  moved  from  where  they 
were  located  therein  to  other  parts  of  said  pit,  and  which  jars, 
crocks  or  receptacles  aforesaid  had  been  used  by  the  defend- 
ant for  storing  nitric  acid  therein  for  a  long  period  of  time, 
to  wit, years  and  upwards  prior  to  the  commit- 
ting of  said  several  grievances;  all  of  which  facts  were  well 
known  to  said  defendant  and  unknown  to  the  plaintiff,  who 
had  entered  said  defendant's  employ  about  a  month  previous 
thereto. 

That  it  then  and  there  became  and  was  the  duty  of  said 
defendant  to  furnish  safe  and  sound  crocks,  jars  or  receptacles 
for  the  storage  of  nitric  acid  while  the  same  were  in  said  pit, 
and  to  exercise  great  caution  to  ascertain  whether  the  same 


PERSONAL   INJURIES  1003 

had  not  become  brittle  and  weakened  by  reason  of  the  action 
of  the  nitric  acid  contained  therein;  and  to  cause  due  inspec- 
tion to  be  made  thereof  at  reasonable  intervals,  so  that  defects 
and  weakness  therein  due  to  the  action  of  nitric  acid  could  be 
discovered  and  thereby  guard  against  the  use  of  brittle,  un- 
sound or  defective  crocks,  jars  or  receptacles  of  said 
description. 

And  it  then  and  there  also  became  the  duty  of  said  defendant 
to  acquaint  those  who  were  required  to  work  in  said  pit  in  the 
moving  of  said  crocks,  jars  or  receptacles,  of  the  result  of 
such  inspection  and  of  the  brittle  and  weakened  condition  of 
said  crocks,  jars  or  receptacles;  and  not  to  sanction  or  allow 
them  to  work  in  said  pit  in  the  moving  about  of  said  crocks, 
jars  or  receptacles  while  the  same  were  in  a  brittle,  weakened 
or  unsound  condition  as  aforesaid. 

That  it  then  and  there  also  became  the  duty  of  said  defen- 
dant to  provide  ladders  or  steps  or  other  means  of  getting  out 
of  said  pit,  so  that  in  the  event  of  said  crocks,  jars  or  re- 
ceptacles breaking  and  the  contents  being  emptied  or  partly 
emptied  into  said  pit,  the  person  or  persons  working  therein 
might  quickly  escape  therefrom  without  the  necessity  and  dif- 
ficulty of  climbing  up  and  out  of  the  same,  and  thus  to  avoid 
coming  in  contact  with  said  acid  or  any  quantities  thereof. 

That  it  further  then  and  there  also  became  the  duty  of 
said  defendant  while  persons  were  working  in  said  pit  to  use 
good,  safe  and  sound  crocks,  jars  or  receptacles  in  which 
nitric  acid  was  stored  then-in,  so  that  there  would  be  no 
danger  of  tht-ir  breaking  while  being  moved  around  in  said 
pit  or  through  any  jar  or  concussion  which  might  take  place 
during  the  moving  thereof;  and  that  at  and  before  the  time 
of  the  committing  of  the  grievances  aforesaid,  it  became  and 
was  the  duty  of  said  defendant  to  inform  those  whom  it 
required  to  enter  and  be  in  said  pit,  and  who  might  or  should 
be  engaged  in  moving  said  crocks  or  jars  about  therein,  of  their 
brittle,  unsound  and  unsafe  condition  and  of  their  likelihood 
to  break  through  any  jar  or  concussion  while  the  same  were 
being  moved. 

That  the  said  defendant  wholly  neglected  its  duties  in  the 
several  particulars  aforesaid,  and  while  so  neglecting  its  said 
several  duties  in  the  several  particulars  aforesaid,  to  wit,  .... 

,  19..,  said  plaintiff  who  was  unfamiliar  v/ith  the 

brittle,  unsafe  and  unsound  condition  of  the  crocks  or  jars  con- 
tained in  said  pit,  and  who  had  never  worked  therein  prior  to 
the  occasion  hereinafter  set  forth,  or  in  the  moving  of  said 
crocks,  jars  or  receptacles,  was  directed  by  the  foreman  and 
superintendent  of  said  defendant  to  enter  into  said  pit  and 
move  some  of  said  crocks,  jars  or  receptacles  from  where  they 
were  stationed  to  other  parts  of  said  pit. 

That  on  the  day  and  year  last  aforesaid,  pursuant  to  said 
direction  and  request,  plaintiff  entered  said  pit  and  proceeded 


1004  ANNOTATED   FORMS   OP    PLEADING    AND    PHACTICE 

to  move  one  of  the  crocks,  jars  or  receptacles  therein,  which 
was  nearly  filled  with  nitric  acid,  from  one  part  of  said  pit 
to  another,  and  while  engaged  in  so  moving  the  same  without 
fault  or  negligence  on  his  part,  a  crock,  jar  or  receptacle 
(which  was  then  and  there  brittle  and  defective  but  which 
defects  were  then  and  there  unknown  to  jjlaintitT  and  were 
well  known  to  the  defendant,  or  if  not  known  should  have 
been,  in  the  exercise  of  due  and  proper  care  on  its  part) 
cracked  and  broke  and  a  section  thereof  fell  out  and  released 
the  contents  of  nitric  acid  therein,  which  ran  in  and  over 
the  said  pit  and  onto,  over  and  against  said  plaintiff;  and  by 
reason  thereof,  and  of  there  being  no  ladder  or  means  of 
exit  from  said  pit,  except  by  climbing  out  therefrom,  said 
plaintiff  was  horribly  burnt  by  said  nitric  acid  coming  in  eon- 
tact  with  his  person,  particularly  his  back,  legs  and  feet,  which 
acid  ate  into  his  flesh,  destroyed  the  muscles,  tendons,  arteries, 
tissues  and  veins  therein,  caused  sores  and  ulcers  to  form 
thereon  and  caused  him  to  become  permanently  crippled,  dis- 
abled and  disfigured,  and  caused  him  great  pain  and  suffering 
and  injury  to  his  health,  and  caused  him  to  languish  in  great 
pain  and  to  be  confined  to  his  bed  for  a  long  period  of  time, 

to  wit, wrecks  and  ui)wards,  and  caused  him  then  and 

there  to  become  greatly  disordered  in  mind  and  body  thereby 
preventing  him  from  follow'ing  his  employment  and  earning 
a  livelihood  in  the  capacity  in  which  he  had  been  employed 
by  said  defendant  and  otherwise;  and  then  and  there  caused 
great  wounds  and  sores  to  form  upon  his  back,  limbs  and  feet, 
and  permanently  injured  his  health  and  permanently  unfitted 
him  for  heavy  or  difficult  labor,  and  rendered  it  difficult  and 
impossible  for  him  to  stand  any  length  of  time  on  his  feet,  and 
to  bend  over  and  to  become  cured  in  his  body  and  health; 
and  thereby  greatly  shortened  his  life,  and  then  and  there 
caused  him  to  incur  large  outlays  for  medical  attendance, 
nurses  and  medicines  in  and  about  his  efforts  to  cure  himself. 

Plaintiff  further  says  that  prior  to  the  coming  in  contact 
with  the  nitric  acid  as  hereinbefore  set  forth,  he  was  a  strong, 
healthy,  able-bodied  man,  capable  of  doing  all  sorts  of  labor, 
and  that  since  his  injuries  aforesaid,  he  is  no  longer  able  to 
work  as  before  or  do  heavy  labor,  and  is  greatly  broken  in 
health  and  mind,  and  continues  to  suffer  great  pain  from  his 
wounds  aforesaid ;  and  his  nervous  system  has  by  reason  of 
the  injuries  and  the  shock  therefrom,  become  greatly  impaired 
and  permanently  affected. 

That  by  reason  of  the  premises  and  of  the  wrongful  acts 
and  negligence  of  the  said  defendant  aforesaid,  said  plaintiff 

has  suffered  great  damage  in,  to  wit,  the  sum  of 

dollars ;  ( )  wherefore  he  brings  this  suit. 


PERSONAL  INJURIES  1005 

1593  Obstruction  in  street,  Narr.  (111.) 

For  that  whereas,  the  defendant  was  on  the  day 

of ,  19.  .,  possessed  of  a  certain  public  street  known 

as street,  extending  in  a  northeasterly  direction 

between   avenue  and   avenue,  in 

said  city,' and  that  thereupon  it  became  and  was  the  duty  of 
the  defendant  to  use  reasonable  care  to  see  that  the  said  street 
was  in  a  reasonably  safe  condition  for  public  travel;  but  the 
defendant,  not  regarding  its  duty  in  that  behalf,  negligently, 
after  due  notice  thereof,  permitted  a  dangerous  obstruction 
to  be  and  remain  in  said  street,  at  about feet  south- 
west from  said avenue  between  the  intersection 

of  the  said avenue  and  the  said 

avenue  in  the  said  city. 

And  the  plaintiff  avers  that  on  the day  of , 

19,  .,  while  driving  along  and  upon  said  street  and  in  the  ex- 
ercise of  due  care  and  caution  for  her  own  safety,  and  without 
being  aware  of  the  presence  of  said  obstruction  in  said  street, 
she  came  in  collision  with  said  obstruction  and  was  thereby 
thrown  violently  to  and  upon  the  ground  there,  and  was  there- 
by greatly  injured  about  her  body,  limbs  and  internal  organs, 
nerves  and  nerve  centers ;  and  thereby  she  became,  was  and  is 
paralyzed  in  her  left  side  and  left  leg;  and  she  became  and 
was  sick,  sore,  lame  and  permanently  injured  and  disordered, 
and  so  remained  for  a  long  space  of  time,  to  wit,  from  thence 
hitherto;  during  all  of  which  time,  the  plaintiff  thereby  suf- 
fered great  pain  and  was  hindered  and  prevented  from  per- 
forming and  transacting  her  affairs  during  that  time  to  be 
performed  and  transacted ;  and  also  thereby  the  plaintiff  was 
obliged  to  and  did  necessarily  lay  out  divers  sums  of  money, 
amounting  to dollars,  in  and  about  endeavor- 
ing to  be  healed  of  the  said  bruises,  wounds,  sickness,  soreness, 
lameness,  and  disorder  so  by  the  defendant  occasioned  as 
aforesaid. 

And  the  plaintiff  aver  that  on  the day  of . .  ., 

19  being  within  six  months  of  the  date  of  the  injuries  afore- 
said,' she  caused  to  be  filed  in  the  office  of  the  city  attorney  of 

the  said  city  of   and  also  in  the  office  of  the 

city  clerk  of • ,  a  statement  in  writing  in  the  words 

and  figures  following :  ,  p       , 

To  the  city  of the  city  attorney  thereot  and 

the  city  clerk  of  said  city.  . 

You  are  hereby  notified,  that received  an 

injury  while  driving  in  a  one-horse  carriage  m,   along  and 

upon     street,  between avenue  and 

. .  avenue  in  the  city  of county  of 

in  the  state  of  Illinois,  by  her  said  carriage  com- 
ing in  collision  with  an  obstruction  in  the  said  street,  on  the 
evening  of  the  day  of ,  19-.,  at  about 


1006  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

the  hour  of o'clock   ..   M. ;  that  the  place  particularly 

where  the  injury  occurred  is  on street  about 

feet  southwest  from  said avenue  and  between  the  said 

avenue  and  the  said avenue ;  that 

the  name  of  the  person  injured  is ;  that  a  cause 

of  action  has  accrued  to  the  said by  reason  of 

the  said  injuries,  received  as  aforesaid;  that  she  is  about  to 
bring  an  action  against  the  said  city  for  the  injuries  so  re- 
ceived, as  aforesaid;  that  the  place  of  residence  of  the  said 

is street  in  the  city  of , 

Illinois ;  and  that  the  attending  physician  of  the  said 

is residing  at street. 


Received  copy,  etc. 

2.     And  for  that  whereas,  the  defendant   on  the    

day  of ,  19.  .,  was  possessed  of  a  certain  public 

street  known  as   street  in  said  city,  extending 

between  and  intersected  by avenue  and 

avenue  in  said  city,  it  therefore  became  and  was  the  duty  of  the 
defendant  to  use  reasonable  care  to  see  that  the  said  street 
was  in  a  reasonably  safe  coudition  for  travel  thereon;  but,  the 
defendant,  not  regarding  its  duty  in  that  behalf,  negligently 
permitted  a  dangerous  obstruction,  to  wit,  two  posts,  to  be 
and  remain  in  said  street,  at  a  point  about feet  south- 
west from  said   avenue,  in  the  said  city  of 

and  which  said  posts  had  remained  in  said  street 

for  such  a  length  of  time  that  the  said  city  by  the  exercise 
of  ordinary  care,  should  have  known  of  their  existence  in  time 
to  have  removed  the  same  prior  to  the  said   day  of 

,19... 

And  the  plaintiff  avers  that  on  the day  of 

,  19.  .,  in  the  evening  of  said  day,  after  dark,  while  driv- 
ing in  a  one-horse  carriage  along  and  upon  said  street  and  in 
the  exercise  of  due  care  and  caution  for  her  own  safety,  and 
without  being  aware  of  the  presence  of  the  two  said  posts  in 
said  street,  the  carriage  in  which  the  plaintiff  was  riding, 
came  in  collision  with  the  said  posts,  and  she  was  thereby 
thrown  violently  from  her  said  carriage  to  and  upon  the 
ground  there  and  was  thereby  so  greatly  and  seriously  injured 
about  her  body,  limbs  and  internal  organs,  and  her  nerves, 
nerve  centers  and  nervous  system  were  so  greatly  shocked, 
injured  and  disordered  that  she  became,  was  and  is  per- 
manently injured ;  and  the  plaintiff  thereby  suffered  great  pain 
and  was  hindered  from  performing  and  transacting  her  affairs 
during  that  time  to  be  performed  and  transacted;  and  the 
plaintiff  thereby  was  obliged  to  and  did  necessarily  lay  out 

divers  sums  of  money,  amounting  to dollars,  in 

and  about  endeavoring  to  be  healed  of  her  wounds,  sickness 
and  disorder  so  by  the  defendant  occasioned  as  aforesaid. 


PERSONAL   INJURIES  1007 

And  for  other  wrongs  the  defendant  to  the  plaintiff  then  and 
there  did,  to  the  damage  of  the  plaintiff,  and  against  the  peace 
of  the  people  of  this  state.    AVheref  ore,  etc. 

h 

For  that  whereas,  long  prior  to  and,  on,  to  wit,  the 

day  of ,  19 . , ,  the  defendant was  a 

municipal  corporation  and  was  then  and  there  possessed  of 
and  in   control  of  a  certain   east  and  west   public   highway 

known  as street,  within  the  corporate  limits  of 

said  city  in  the  county  and  state  aforesaid ;  that  the  defendant 

was  long  prior  to  and  then  and  there  possessed  of 

and  in  control  of  a  certain  street  railway  running  laterally 

along  said  public  highway ;  that  said  defendant 

prior  to  the  time  of  the  injury  hereinafter  complained  of  wrong- 
fully and  negligently  threw  or  dumped  such  large  quantities 
or  piles  of  cinders  along  side  of  its  said  railway  in  the  vicinity 

of  the  intersection  of  said  public  highway  with 

street,  as  to  create  a  dangerous  obstruction  to  travel  in  vehicles 
upon  said  public  highway,  and  it  then  and  there  wrongfully 
and  negligently  suffered  and  permitted  said  cinders  to  so  re- 
main on  said  public  highway  during  the  day  and  night  time. 

And  the  plaintiff  further  alleges  that  said  railway  company 
had  been  accustomed  to  so  dump  or  throw  such  cinders  on  said 
highway  and  to  permit  the  same  to  remain  there  for  a  sufficient 
length  of  time  prior  to  the  occasion  in  question  so  that  the  de- 
fendant, the  city  of knew  or  by  the  exercise  of 

ordinary  care  in  that  behalf  could  have  known  of  said  rail- 
way company  so  throwing  or  dumping  said  cinders  and  per- 
mitting the  same  to  remain  on  said  public  highway  as  afore- 
said before  and  upon  the  occasion  in  question ;  but  the  said 

defendant  city  of wrongfully  and  negligently 

suffered  and  permitted  the  said  defendant  to  so  throw  or  dump 
said  cinders  on  said  highway,  and  it  wrongfully  and  negli- 
gently  suffered   and   permitted   said   cinders   so   throw^n   and 

dumped  on  said  highway  by  said  defendant as 

aforesaid  to  be  and  remain  on  said  highway  until  the  time  of 
tlie  injury  hereinafter  complained  of. 

And  the  plaintiff  further  alleges  that  said  piles  of  cinders 
constituted  a  dangerous  obstruction  to  travel  in  vehicles  along 
said  public  highway ;  and  that  it  was  then  and  there  the  duty 
of  each  of  said  defendants  to  exercise  reasonable  care  toward 
placing  or  seeing  that  a  light  was  placed  and  maintained  on 
said  piles  of  cinders  during  the  night  time,  so  as  to  warn  per- 
sons riding  along  said  public  highway  of  the  existence  and 
presence  of  said  piles  of  cinders ;  but  that  each  of  said  defend- 
ants not  regarding  their  said  duty  Avrongfully,  negligently  and 
improperly  failed  to  exercise  reasonable  care  toward  placing  a 
light  or  seeing  that  a  light  was  placed  and  maintained  on  said 


1008  ANNOTATED    FORMS   OF   PLEADING    AND   PRACTICE 

piles  of  cinders,  and  as  a  result  and  in  consequence  thereof,  no 
light  was  placed  or  maintained  on  said  piles  of  cinders  on  the 
occasion  in  question  which  was  in  the  night  time,  but  therein 
wholly  made  default.  . 

And  the  plaintiff  further  alleges  that  at  the  time  and  place 
aforesaid  he,  the  plaintiff,  was  an  officer,  to  wit,  a  marshal  or 

battalion  chief  of  the  fire  department  of  the  city  of  . . .  ., 

and  upon  the  occasion  in  question  which  was  in  the  night  time 
and  while  dark,  the  plaintiff,  in  the  discharge  of  his  duties  as 
such  officer  was  riding  in  a  wagon  westward  along  said  public 
highway  and  while  so  riding,  and  while,  as  he  alleges,  he  was 
exercising  ordinary  care  and  caution  for  his  own  safety,  by 
reason  and  as  a  direct  result  of  the  absence  of  a  light  to 
indicate  the  presence  or  existence  of  said  piles  of  cinders  so 
dumped  and  permitted  to  remain  on  the  said  public  highway 
as  aforesaid,  his  buggy  ran  against  and  upon  said  piles  of 
cinders  and  plaintiff  was  thereby  then  and  there  thrown  vio- 
lently from  said  buggy  to  the  ground  there,  and  his  left  leg 
was  thereby  then  and  there  broken  near  the  thigh  and  his  left 
knee  was  wrenched,  sprained  and  otherwise  injured  and  divers 
other  bones  of  his  body  were  thereby  then  and  there  otherwise 
seriously  and  permanently  injured  externally  and  internally, 
and  he  sustained  a  serious  and  permanent  shock  to  his  spine 
and  nervous  system ;  and  as  a  direct  result  and  in  consequence 
of  his  said  injuries,  sickness  and  disorders  occasioned  as  afore- 
said he  became  and  was  crippled,  sick,  sore,  lame  and  dis- 
ordered, and  so  remained  for  a  long  space  of  time,  to  wit,  from 
thence  hitherto,  and  so  will  continue  to  remain  permanently, 
during  all  of  which  time  he  has  suffered  great  pain,  and  has 
been  hindered  and  prevented  from  attending  to  and  transact- 
ing his  ordinary  business,  and  will  continue  permanently  to 
be  hindered  and  prevented  from  attending  to  and  transact- 
ing his  business  and  affairs ;  and  thereby  has  been  and  will  con- 
tinue permanently  to  be  deprived  of  great  gains  and  profits 
which  he  might  and  otherwise  would  have  made  and  acquired ; 
and  has  been  compelled  to  and  did  incur,  expend  and  lay  out 

divers  large  sums  of  money  amounting  to,  to  wit, ;••.•• 

dollars,  in  and  about  endeavoring  to  be  cured  of  his  said  in- 
juries, sickness  and  disorders  occasioned  as  aforesaid.  To  the 
damage,  etc.    (Add  averment  of  notice  as  in  Section  1613) 

1594  Open  switch,  Narr.  (111.) 

For  that  whereas,  heretofore,  to  wit,  on  the day  of 

,  19.  .,  at,  to  wit,  in  the  county  aforesaid,  the  said 

defendant  was  possessed  of  and  was  operating  a  certain  line 

of  railroad  extending  through  the  city  of in  said 

county  to  a  certain  other  point,  to  wit,  the  village  of 

in  said  county,  upon  which  the  said  defendant  was  then  and 
there  operating  divers  cars  by  means  of  electric  power  for  the 


PERSONAL   INJURIES  1009 

carriage  of  passengers  for  hire ;  that  in  consideration  of  a  cer- 
tain reward  by  her  paid  to  said  defendant  in  that  behalf,  plain- 
tiff then  and  there  became  and  was  a  passenger  upon  one  of  the 
said  cars,  to  be  carried  from  a  certain  street  in  the  said  city  of 

in  a  northerly  direction  to  a  certain  station 

upon  the  said  line  of  railroad,  to  wit,  the  village  of , 

in  said  county;  that  when  said  car  in  which  said  plaintiff  was 
then  and  there  riding  as  a  passenger,  as  aforesaid,  thereafter 
reached  a  point,  to  wit,  a  point  on  its  said  right  of  way  about 

mile  north  of  the  said  city  of ,  at  and 

near  what  is  known  as  the  " ,"  at  said  point,  and 

at  and  near  a  certain  siding  or  switch  track  belonging  to  and 
used  by  said  defendant,  and  connected  by  means  of  a  certain 
switch  with  the  main  track  upon  which  said  car  was  then  and 
there  proceeding,  a  certain  other  car  then  and  there  belonging 
to  and  used  and  operated  by  the  said  defendant  was  then  and 
there  left  standing  upon  said  siding  or  switch  track  in  such 
position  that  but  for  the  negligence  of  the  said  defendant  here- 
inafter charged,  the  said  car  upon  which  the  said  plaintiff  was 
then  and  there  riding  could  have  passed  over  and  along  said 
main  track  and  around  the  car  so  standing  upon  said  siding 
or  switch  track,  as  aforesaid. 

And  while  the  said  plaintiff  with  all  due  care  and  diligence 
was  then  and  there  riding  in  the  said  car  along  and  upon  the 
said  defendant's  right  of  way  at  the  place  aforesaid,  the  said 
defendant  then  and  there  by  its  said  servants,  so  carelessly 
and  improperly  drove  and  managed  the  said  car  in  Avhich  the 
said  plaintiff  was  riding  as  a  passenger  as  aforesaid,  that  by 
and  through  the  lU'gligence,  mismanagement  and  unskillfulness 
of  the  said  defendant  by  its  said  servants  in  that  behalf,  the 
said  car  then  and  there  ran  into  and  struck  with  great  force 
and  violence  upon  and  against  a  certain  other  car  belonging 
to  and  then  and  there  used  and  operated  by  the  said  defendant. 

2.  And  the  said  plaintiff  avers  that  it  also  then  and  there 
became  and  was  the  duty  of  the  said  defendant  so  to  move 
its  said  car  and  so  to  arrange  and  adjust  its  said  switch  that 
the  passage  of  these  two  cars  would  be  effected  without  injury 
or  peril  to  any  of  its  said  passengers;  but  the  said  defendant, 
not  regarding  its  duty  in  this  regard,  then  and  there  negli- 
gently and  carelessly  caused  the  said  car  upon  which  the  said 
phiintitt'  was  then  and  there  riding  to  approach  the  said  car  so 
standing  upon  the  said  siding  or  switch  track,  as  aforesaid, 
with  great  and  dangerous  speed,  and  then  and  there  negligently 
omitted  to  have  its  said  switch  so  fixed  and  adjusted  that  the 
said  car  upon  which  the  said  plaintiff  was  then  and  there  rid- 
ing Avould  safely  pass  the  said  car  so  standing  upon  the  said 
siding  or  switch  track,  as  aforesaid,  but,  on  the  contrary,  and 
not  regarding  its  duty  in  that  behalf,  the  said  defendant  then 
and  there  negligently  omitted  to  have  the  said  switch  closed, 
and  the  said  switch  was  then  and  there  open,  and  the  said  car 


1010  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

upon  which  the  said  plaintiff  was  then  and  there  riding 
turned  in  upon  the  said  switch  track  and  continued  to  ap- 
proach the  said  standing  car  with  great  and  dangerous  speed, 

to  wit,  at  the  rate  of miles  per  hour,  and  the  said 

car  upon  which  the  said  plaintiff  was  then  and  there  riding 
then  and  there  ran  into  and  struck  with  great  force  and  vio- 
lence upon  and  against  said  car  so  standing  upon  said  switch 
track,  as  aforesaid. 

3.  And  it  also  then  and  there  became  and  was  the  duty 
of  the  said  defendant  to  use  and  exercise  great  care  and  cau- 
tion in  the  management  and  operation  of  its  said  car  by  its 
servants,  in  that  it  was  then  and  there  the  duty  of  its  said 
servants  to  run  and  operate  its  said  car  at  such  a  rate  of  speed 
that  the  said  car  could  be  controlled  by  said  servants  and 
stopped  if  it  became  necessary  so  to  do,  in  order  to  prevent 
the  said  car  from  entering  into  and  upon  the  said  switch  and 
side  track;  but  the  said  defendant,  wholly  regardless  of  its 
duty  in  that  behalf  and  while  the  said  plaintiff  was  then  and 
there  in  the  exercise  of  due  care  and  caution  for  her  own 
safety,  then  and  there  so  carelessly  and  negligently  drove 
and  operated  its  said  car  at  a  great  and  dangerous  rate  of 

speed,  to  wit,  at  the  rate  of miles  per  hour,  that  the 

said  defendant  could  not  control  and  stop  said  car  when  it 
approached  said  switch,  which  said  switch  was  then  and  there 
open,  and  the  said  car  then  and  there  left  the  main  track  upon 
which  it  had  theretofore  been  running,  and  ran  upon  said  side 
track  and  ran  into  and  against,  and  then  and  there  struck 
with  great  force  and  violence  upon  andagainst  a  certain  other 
car  which  was  then  and  there  in  the  possession  of  the  said 
defendant,  and  which  was  then  and  there  being  used  by  the 
said  defendant. 

4.  And  it  also  then  and  there  became  and  was  the  duty  of 
the  said  defendant  to  use  and  exercise  great  care  and  caution 
in  the  management  and  operation  of  its  said  car  by  its  servants, 
in  that  it  was  then  and  there  the  duty  of  the  said  defendant 
by  its  said  servant  to  look  ahead  and  observe  as  to  whether 
said  switch  would  be  open  so  as  to  cause  said  car  to  enter 
into  and  upon  said  switch  and  said  side  track,  or  whether  said 
switch  would  be  closed,  so  that  said  car  would  remain  upon 
the  said  main  track  and  continue  to  run  upon  and  along  said 
main  track  upon  which  said  main  track  said  car  was  then  and 
there  being  run  and  operated;  but  the  said  defendant,  wholly 
regardless  of  its  duty  in  that  behalf  and  while  the  said  plain- 
tiff was  then  and  there  in  the  exercise  of  due  care  and  caution 
for  her  own  safety,  then  and  there  so  carelessly  and  negli- 
gently failed  to  look  ahead  and  to  observe  the  condition  of 
said  switch,  that  said  car  then  and  there  ran  into  said  switch, 
which  said  SAvitch  was  then  and  there  open,  and  the  said  car 
then  and  there  left  the  main  track  upon  which  it  had  thereto- 
fore been  running,  and  ran  upon  said  side  track  and  ran  into 


PERSONAL  INJURIES 


1011 


and  against  and  then  and  there  struck  with  great  force  and 
violence  upon  and  against  a  certain  other  car  which  was  then 
and  there  in  the  possession  of  the  said  defendant,  and  which 
was  then  and  there  being  used  by  the  said  defendant. 

5.  And  it  also  then  and  there  became  and  was  the  duty  ot 
the  said  defendant  to  lock  the  said  switch  so  that  no  person, 
unless  duly  authorized  so  to  do,  could  turn  the  said  switch; 
but  the  said  defendant,  T\'holly  regardless  of  its  duty  m  this 
behalf,  and  while  the  said  plaintiff  was  then  and  there  m  the 
exercise  of  due  care  and  caution  for  her  own  safety,  so  care- 
lessly and  negligently  failed  to  lock  the  said  switch  that  said 
switch  then  and  +here  became  and  was   improperly  turned 
and  thrown,  so  that  the  car  of  the  said  defendant  upon  which 
the  said  plaintiff  was  then  and  there  a  passenger,  as  afore- 
said, ran  into  said  switch  and  upon  said  side  track  at  a  great 
and  dangerous  rate  of  speed,  to  wit,  at  the  rate  of  ........ 

miles  per  hour,  and  then  and  there  with  great  force  and  vio- 
lence ran  into  and  against  a  certain  other  car  of  the  said  de- 
fendant which  was  then  and  there  standing  upon  the  said  side 
track  at  the  place  aforesaid. 

6.  And  it  also  then  and  there  became  and  was  the  duty  of 
the  said  defendant  properly  to  watch  and  guard  said  switch, 
so  that  if  said  switch  were  improperly  turned  it  could  be 
properly  turned  before  the  approach  of  any  of  said  defend- 
ant's cars  towards  said  switch;  but  the  said  defendant  wholly 
regardless  of  its  duty  in  this  behalf,  and  while  the  said  plain- 
tiff was  then  and  there  in  the  exercise  of  due  care  and  caution 
for  her  own  safety,  so  carelessly  and  negligently  failed  prop- 
erly to  watch  and  guard  the  said  switch  that  said  switch  then 
and  there  became  and  was  improperly  turned  and  thrown, 
so  that  the  car  of  the  said  defendant  upon  which  the  said 
plaintiff  was  then  and  there  a  passenger,  as  aforesaid  ran  into 
said  switch  and  upon  the  said  side  track  at  a  great  and  danger- 
ous  rate  of  speed,  to  wit,  at  the  rate  of  ........   miles  per 

hour,  and  then  and  there  with  great  force  and  violence  ran 
into  and  against  a  certain  other  car  of  the  said  defendant 
which  was  then  and  there  standing  upon  the  said  side  track  at 
the  place  aforesaid.  ,  .     .^  ,,  j    +i     ^ 

By  means  whereof  the  said  plaintiff  was  then  and  there 
thrown  with  great  force  and  violence  in  and  about  the  said 
car  in  which  she  was  then  and  there  a  passenger,  as  afore- 
said, and  said  plaintiff  was  then  and  there  and  thereby  greatly 
bruised,  crashed,  maimed,  lacerated,  hurt,  wounded  and  other- 
wise disabled,  and  otherwise  permanently  injured,  and  divers 
bones  of  her  body  were  then  and  there  and  thereby  broken, 
and  divers  bones  of  her  body  were  then  and  there  and  thereby 
wrenched  and  dislocated,  and  the  nerves,  muscles,  tendons, 
sinews,  and  ligaments  of  the  said  plaintiff  were  thereby  then 
and  there  severely  and  permanentlv  injured  and  as  a  tuither 
result  of  said  injuries,  said  plaintiff  has  suffered,  and  is  now 


1012  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

suffering,  and  will  continue  to  suffer,  from  severe  pains  and 
nervous  disorders,  and  has  become  permanently  injured  and 
disordered;  and  by  reason  of  the  premises,  the  said  plaintiff 
was  obliged  to  and  did  lay  out  and  expend,  and  become  liable 
for,  divers  large  sums  of  money  in  and  about  endeavoring  to 
be  relieved  and  cured  of  her  said  injuries,  and  has  been 
hindered  and  prevented  from  attending  to  and  transacting  her 
ordinary  affairs  and  business,  thereby  being  deprived  of  divers 
large  sums  of  money  which  she  might  and  otherwise  would 
have  earned.    To  the  damage  of,  etc.^i-* 

(Virginia) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the day  of 

,  19.  .,  the  said  defendant  was  a  railroad  com- 
pany and  owned  and  operated  a  railroad  from , 

Virginia,  to   ,  Virginia,  and  to  other  points, 

with  its  principal  office  in  the  city  of ,  Virginia, 

and  that  a  part  of  said  railroad  ran  through  the  county  of 

,  Virginia ;  that  the  plaintiff"s  decedent  on  the  day 

and  year  aforesaid  was  a  locomotive  engineer  in  the  service  of 
said  company,  and  on  the  day  and  j^ear  aforesaid  was  the  en- 
gineer of  the  engine  attached  to  passenger  train  No.  . .  running 
from to ,  Virginia. 

And  thereupon  it  became  and  was  the  duty  of  the  defendant 
to  use  ordiimry  care  to  provide  and  maintain  a  safe  track  upon 
which  the  engine  operated  by  plaintift"s  decedent  was  to  run; 
and  to  use  ordinary  care  to  keep  all  obstructions  off  of  said 
track;  and  to  use  ordinary  care  to  see  that  all  the  switches 
connecting  the  said  track  with  side  tracks  or  other  tracks  in 

the  yard  of  the  defendant  at ,  Virginia,  were 

closed  and  kept  closed  ahead  of  the  said  engine;  and  to  use 
ordinary  care  to  provide  and  keep  in  proper  order  and  condi- 
tion safe  and  suitable  switches  connecting  its  main  track  upon 
which  the  engine  operated  by  the  plaintiff's  decedent  was 
being  run,  with  side  tracks  and  yard  tracks  and  to  keep  said 
switches  closed ;  and  to  use  ordinary  care  to  provide  and  main- 
tain suitable  and  sufficient  targets  attached  to  said  switches; 
and  to  keep  the  same  so  painted  as  to  give  timely  and  sufficient 
notice  to  the  plaintiff's  decedent  approaching  said  switches 
upon  the  engine  of  the  defendant  that  the  switch  was  open  so 
as  to  enable  the  said  decedent  to  stop  his  engine  and  train  in 
time  to  avoid  an  accident ;  and  to  use  ordinary  care  to  so  locate 
the  said  switch  and  target  that  it  might,  if  open,  be  seen,  far 
enough  ahead  of  the  engine  to  permit  the  stopping  of  the  train 
in  time  to  prevent  an  accident. 

Yet,  the  said  defendant,  not  regarding  its  duty  in  this  behalf, 

214  Elgin,  Aurora  &  Soufhern 
Traction  Co.  v.  Wilson,  217  111.  47 
(1905). 


PERSONAL   INJURIES  1013 

negligently  and  carelessly  failed  to  provide  and  maintain  a  suit- 
able SAviteh  and  target  at  a  point  which  said  switch  connected 
its  main  track  with  one  of  its  yard  tracks  on  the  west  end  of 

•  •...... yard ;  and  negligently  failed  to  so  locate  the 

said  switch  and  target,  that  the  same  could  have  been  seep 
by  plaintiff's  decedent  as  the  engine  operated  by  him  was 
approaching  the  said  switch  in  time  to  prevent  an  accident; 
and  failed  to  keep  said  switch  closed.  And  the  said  defend- 
ant carelessly  permitted  the  yard  engine  to  remain  upon  the 
said  track  connected  by  the  switch  aforesaid  with  the  track 
upon  which  No,  .  .  was  running ;  and  permitted  the  said  switch 
to  remain  open.  And  because  of,  and  on  account  of,  said  negli- 
gence of  the  defendant  the  engine  attached  to  No.  .  .  passenger 
train  and  which  was  being  operated  by  plaintiff's  decedent 
without  any  negligence  or  want  of  care  on  his  part,  and  while 
said  engine  was  running  only  a  few  minutes  behind  its  regular 
schedule,  ran  into  the  said  switch,  so  carelessly  and  negli- 
gently permitted  to  remain  open  by  the  said  defendant,  and 
left  the  main  track  upon  which  it  was  running  and  ran  into 
one  of  the  yard  tracks  upon  which  the  yard  engine  was  stand- 
ing, and  with  great  force  and  violence  ran  against  and  upon 
tlie  said  yard  engine. 

2.  (Consider  first  count  to  star  as  here  repeated  the  same  as 
if  set  out  in  words  and  figures.) 

And  thereupon  it  became  and  was  the  duty  of  the  said 
defendant  to  use  ordinary  care  for  the  protection  of  the  plain- 
tiff's decedent  and  to  see  that  he  was  not  injured  by  reason 
of  the  negligence  of  a  co-employee  charged  with  the  duty  of 
transmitting  orders  with  reference  to  the  switch  on  the  west 

end  of  .  , yard  which  connected  the  main  track 

upon  which  train  No.  .  .  was  running  on  the  day  of  the  acci- 
dent with  one  of  the  other  tracks  in  said  yard. 

Yet,  the  said  defendant,  not  regarding  its  duty  in  this 
behalf,  did  through  one  of  its  employees  who  was  charged  with 

transmitting  orders  from  the  division  office  at , 

with  respect  to  said  switch,  negligently,  wrongfully  and  im- 
properly caused  and  permitted  a  message  to  be  sent  to  the 
employee  of  the  defendant  having  charge  of  the  switch  afore- 
said, directing  him  to  keep  said  switch  open  for  an  approaching 
freight  or  other  train  which  said  employee  having  charge  of 
said  switch  did,  by  reason  whereof,  and  when  the  plaintiff's 
decedent  was  in  the  faithful  discharge  of  his  duty  as  engineer 
of  the  engine  attached  to  train  No.  . .  going  east  at  the  time 
of  the  accident,  and  while  said  engine  was  running  only  a  few 
minutes  behind  its  regular  schedule,  ran  into  the  said  switch 
so  carelessly  and  negligently  permitted  to  remain  open  by 
the  said  defendant,  and  left  the  main  track  upon  which  it  was 
running,  and  ran  into  one  of  the  yard  tracks  upon  which  the 
yard  engine  was  standing,  and  with  great  force  and  violence 


1014  ANNOTATED   FORMS   OF    PLEADING    AND    PKACTICE 

ran  against  and  upon  the  said  yard  engine,  wrecking  both 
engines. 

By  means  whereof  the  plaintiff's  decedent  was  greatly 
bruised,  mangled  and  otherwise  injured  and  from  which  he 
suffered  great  and  intense  mental  and  physical  pain  and 
anguish  for  the  space  of  about  two  and  a  quarter  days,  when 
by  reason  of  said  injuries  so  carelessly,  negligently  and 
wrongfully  committed  by  tho  said  defendant  against  the  said 
decedent,  he  then  and  there  died. 

Wherefore,  the  said  plaintiff  says  that  damages  have  been 

sustained  to  the  amount  of  $ ,  and  that  by  virtue  of  the 

constitution  and  laws  of  Virginia,  she  is  entitled  to  recover 
the  said  amount,  and  therefore  she  brings  suit,  etc. 


For  that  whereas,  before  and  at  the  time  of  the  commission 
of  the  grievances  hereinafter  complained  of,  to  wit,  on  the 

....  day  of ,  19. .,  to  wit,  in  the  county  of 

,  Virginia,  and  within  the  jurisdiction  of  this 

court,  the  said  defendant  was  the  owner,  occupier  and  user  of 

a  certain  line  of  railway  extending  in  part  from 

county,  Virginia,  to ,  Virginia,  a  point  a])Out 

miles  south  of  the  city  of ,  in  the  county  of 

,  Virginia,  aforesaid,  which  line  of  railway  was  and  is 

used  by  the  said  defendant  for  the  purpose  of 

running  thereon  and  thereover  its  locomotives,  engines  and  cars, 
propelled  by  steam,  for  the  transportation  of  passengers, 
freight,  material,  etc.,  from  point  to  point,  along  its  said  line 
of  railway ;  that  at  said  point  on  its  said  line  of  railway,  to  wit, 

,  Virginia,  the  defendant  had  established  and  was 

maintaining  a  signal  station  and  telegraph  office,  and  at  said 
point  there  were  certain  side  tracks  and  sw^itches  owned  and 

used  by  said  defendant  for  the  purpose  of 

shifting  and  changing  cars  and  engines  and  turning  the  same 
from,  and  on  to  the  main  line  of  said  railway  of  said  defend- 
ant   at  said  point ;  that  the  said  signal  station, 

telegraph  office  and  said  tracks  and  switches,  so  used  as  afore- 
said, were  under  the  management,  control  and  supervision  of 
one  of  said  defendant's  agents,  servants  and  employees;  and 
the  plaintiff  avers  that  it  was  the  office  and  duty  of  the  said 

agents,  employees  and  servants  of  the  said  defendant , 

so  in  charge  of  the  said  signal  station,  telegraph  office,  tracks 

and  switches  at  said  point,  to  wit,   ,  Virginia, 

to  give  all  due,  proper  and  correct  signals  to  the  locomotive 
engineers  running  and  operating  the  engines  attached  to  the 

trains  of  the  defendant approaching  said  signal 

station,  and  to  superintend,  guard  and  have  said  switches  at 
said  point  properly  thrown,  placed  and  kept  in  proper  posi- 
tion, so  as  to  secure  a  clear,  free  and  safe  track  for  the  engines 


PERSONAL  INJURIES  1015 

and  coaches  of  the  defendant passing  over  and 

along  its  main  track  at  said  point;  and  especially  so  for  the 
train  and  engine  which  the  plaintiff's  intestate,  as  a  locomo- 
tive engineer  in  the  discharge  of  his  duty  and  as  an  employee 

of  the  defendant ,  was  driving  and  carrying 

over  and  along  said  track  at  said  point  at  the  time  of  the  griev- 
ances hereinafter  complained  of,  to  wit,  on  the day  of 

,19... 

And  the  plaintiff  further  avers  that  at  the  time  of  the  com- 
mission of  the  grievances  hereinafter  complained  of,  to  wit,  on 

the day  of   ,  19,.,  the  said  plaintiff's 

intestate,   ,  was  an  employee  of  the  said 

defendant ,  as  a  locomotive  engineer  on  the  pas- 
senger trains  of  the  defendant running  in  part 

between  the  said  points  of  ,  in  the  county  of 

,  Virginia,  and  said ,  in  the  county 

of ,  Virginia,  on  the  line  of  defendant's  railway; 

that  as  such  locomotive  engineer  he  was,  at  the  time  of  the 
commission  of  the  grievances  hereinafter  complained  of,  to 
wit,  on  the day  of ,  19.  .,  running  and  mov- 
ing one  of  the  passenger  trains  and  engines  of  the  defendant 

over  the  line  of  defendant's  railway  between  said 

points ;  that  when  he  had  reached  a  point  on  said  railway  a  few 

miles  south  of ,  Virginia,  and  within  a  short  distance, 

to  wit,  about  three  or  four  hundred  yards  from  the  said  signal 

station  of  the  said  defendant at  the  said  point  of 

,  Virginia,  on  the  line  of  the  defendant's  railway, 

that  in  the  discharge  of  his  duty  as  locomotive  engineer  in 
charge  of  and  running  and  operating  said  engine  and  train 

of  the  defendant ,  and  in  obedience  to  the  rule 

of  the  said  defendant  ,  the  plaintiff's  intestate, 

by  due  and  proper  signals,  notified  and  advised  said  station 

agent  of  defendant ,  at  its  signal  station  at 

.,  of  the  approach  of  his  said  train  and  engine 

towards  said  station,  going  south,  and  asked  for  signals  from 
said  station  agent  as  to  the  condition  of  the  track  between  his 
train  and  enfjine  and  said  station,  and  at  and  beyond  said  sta- 
tion.    And  the  plaintiff  avers  that  in  response  to  said  notice 

and  call  for  signals  the  agent  of  the  defendant at 

said  station,  in  charge  of  said  signal  station,  switches  and 

tracks  at  said  point,  to  wit,  at  its  said  station  at , 

Virginia,  as  aforesaid,  in  disregard  of  his  duty  in  the  prem- 
ises, carelessly,  negligently  and  recklessly  signalled  plaintiff's 
intestate,  so  in  charge  of  the  said  train  and  engine,  that  the 
track  was  safe  and  clear,  and  to  "proceed"  on  his  way  south; 
that  plaintiff's  intestate,  relying  upon  said  signal  thus  given 
him  that  the  track  ahead  was  clear  and  safe,  did  "proceed," 
and  propelling  forward  his  engine  with  the  train  attached, 
reached  the  point  on  the  northern  or  western  track  of  the 
defendant ,  opposite  or  a  little  beyond  and  south 


1016  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

of  its  said  station,  where  said  engine  and  cars  attached  ran 
into  a  railway  switch  left  open  by  the  carelessness  and  negli- 
gence of  the  defendant's  station  agents,  servants  and  employ- 
ees, whereby  said  engine,  so  in  charge  of  plaintiff's  intestate, 
was  deflected  from  its  proper  track  and  course,  derailed  and 
overturned  and  the  plaintiff's  intestate  caught  under  the  same, 
scalded,  bruised,  mangled  and  killed. 

And  so  the  plaintiff'  says  that  by  the  said  wrongful  acts, 

gross  carelessness  and  negligence  of  the  said  defendant 

,  by  and  through  its  agents,  servants  and  employees,  or 

some  one  or  more  of  them,  in  this,  that  by  reason  of  the  failure 

of  the  said  defendant  to  have  said  switch  at 

said  station  duly  and  properly  closed,  and  by  giving  to  plain- 
tiff"s  intestate,  wrong,  erroneous  and  misleading  signal  as  afore- 
said, at  the  said  time  and  place  aforesaid,  the  said , 

plaintiff's  intestate,  came  to  his  death  as  aforesaid. 

And  so  the  plaintiff  avers  that  by  reason  of  tlie  premises  as 
above  set  forth,  an  action  has  accrued  to  the  said  plaintiff  to 

have  and  recover  damages  of  the  said  defendant 

in  pursuance  of  the  statute  in  such  cases  made  and  provided, 
and  that  she  has  sustained,  is  entitled  to  recover  and  demands, 

damages  of  the  defendant to  the  amount  of 

($ )  dollars. 

And  therefore  she  brings  her  suit. 

1595  Pile  of  barrels  in  packing  house,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of 

,  19. .,  the  defendant  was  possessed  of,  and  operating  a 

certain  establishment,  commonly  called  a  packing  house ;  tliat 
plaintiff'  then  and  there  was  in  the  employ  of  said  defendant, 
as  a  laborer,  and  as  such  was  working  for  defendant,  with 
all  due  care  and  caution  for  his  own  safety,  at  and  near  a  certain 
pile  of  pork  barrels,  which  were  piled  in  rows  one  upon  another 
to  a  great  height,  to  wit, feet. 

And  plaintiff'  further  avers  that  it  then  and  there  became 
and  was  the  duty  of  the  defendant  to  keep  and  maintain  said 
piles  of  barrels  in  such  condition  that  they  would  not  spread, 
tilt,  or  fall  upon  plaintiff  while  working  for  the  defendant 
at  and  near  the  same,  and  not  to  do  anything  with  or  to  said 
pile  of  barrels  which  would  cause  them  to  spread,  tilt  or  fall 
upon  the  plaintiff  while  working  at  or  near  them  in  the  busi- 
ness of  the  defendant. 

Yet,  the  defendant,  in  utter  disregard  of  its  duty  in  this 
behalf,  then  and  there,  carelessly  and  negligently,  kept  and 
maintained  said  row  of  barrels,  defectively  piled  in  rows  one 
upon  another,  and  while  so  defectively  piled,  drove  in  the  head 
of  one  of  said  barrels,  and  took  therefrom  the  contents  thereof, 
to  wit,  certain  brine  and  pork,  so  that  the  said  barrel  was  then 


PERSONAL  INJURIES  1017 

and  there  greatly  weakened  and  rendered  unable  to  support 
the  weight  of  the  barrels  piled  above  the  same. 

And  by  reason  of  the  carelessness  and  negligence  of  defend- 
ant, in  manner  aforesaid,  and  while  plaintiff  was  in  the  exer- 
cise of  all  due  care  for  his  own  safety,  the  said  barrels  spread, 
tilted,  gave  way  and  fell  upon  and  against  the  plaintiff,  and 
thereby  plaintiff  was  thrown  and  cast  to  and  upon  the  gTOund 
there,  with  great  force  and  violence;  whereby  the  plaintiff 
was  then  and  there  severely  bruised,  contused,  lacerated  and 
wounded,  and  the  leg  of  plaintiff'  was  then  and  there  broken; 
and  the  plaintiff  was  then  and  there  otherwise  greatly  and 
permanently  bruised,  wounded  and  disabled,  in  so  much  that 
he  then  and  there  became  sick,  sore,  lame  and  disordered,  and 
so  remained  for  a  long  space  of  time,  to  wit,  from  thence, 
hitherto;  during  all  of  which  time  plaintiff'  suffered  great 
pain,  and  was  hindered  and  prevented  from  transacting  and 
attending  to  his  business  and  affairs;  and  by  reason  also  of 
the  premises,  plaintiff  was  forced  to  and  did  expend  large 

sums  of  money,  to  wit,  the  sum  of dollars  in 

and  about  endeavoring  to  be  cured  of  the  said  wounds  and 
injuries,  received  in  manner  aforesaid.     Wherefore,  etc. 

1596  Poisonous  food  stuffs,  Narr.  (111.) 

For  that  the  defendant  in  the  lifetime  of  the  said  J  and, 

to  wit,  on  the day  of ,  19 . . ,  at  the  county 

of and  state  of  Illinois,  were  and  for  a  long  time 

previous  thereto  had  been  manufacturers  and  venders  to  the 

public  of  a  certain  article  of  food  called  and  known  as 

,  in  the  name  of  the  E  P  Co.  guaranteed  by  said  defend- 
ant to  be  absolutely  pure  mince  meat  and  a  proper  and  whole- 
some article  of  food,  which  said  defendants  knew  to  be  danger- 
ous to  human  life  unless  properlj^  made  of  proper  and  whole- 
some material ;  that  previous  thereto  said  defendant  had  sold 
and  delivered,  with  other  packages  of  mince  meat,  to  a  certain 
wholesale  dealer  in  meats  and  provisions,  then  and  there  doing 
business  under  the  name  of  S  &  Co.,  to  be  resold  by  them  in  the 
regular  course  of  their  business,  a  certain  package  of  said 
mince  meat  so  manufactured  and  guaranteed  by  it  and  sold 
and  put  upon  the  market  by  said  defendant  as  a  pure  and 
wholesome  article  of  food;  that  said  S  &  Co.  thereafter  then 
and  there  sold  and  delivered  the  said  package  of  mince  meat 
in  the  regular  course  of  their  business  as  wholesale  dealers  to 

one  H,  a  retail  dealer  in  groceries  and  provisions  at 

in  the  county  of and  state  of  Illinois ;  that 

thereafter  the  said  H,  then  and  there  at  afore- 
said, to  wit,  at county,  sold  and  delivered  said 

package  of  mince  meat  in  the  regular  course  of  his  trade  and 
business  to  one  S,  at  said ,  for  use  and  consump- 
tion in  her  family,  of  which  the  said  J  was  a  member. 


1018  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

And  that  thereupon  it  became  and  was  the  duty  of  the  said 
defendant  then  and  there  to  manufacture,  compound  and  put 
up  and  sell  to  the  trade  for  use  as  food  by  the  public  as  afore- 
said, only  such  mince  meat  as  was  pure  and  wliolesome  and 
not  'poisonous  or  destructive  to  human  life  when  the  same 
should  be  duly  prepared  for  use  and  used  as  food;  and  to 
put  the  same  up  in  such  reasonably  safe  and  proper  packages 
that  the  same  should  be  and  continue  pure,  safe  and  wholesome 
as  food,  and  not  become  poisonous  or  destructive  to  human 
life,  while  the  same  should  be  and  remain  in  the  hands  of  deal- 
ers awaiting  sale  to  the  consumers  for  use  as  food  as  aforesaid. 

Yet,  the  defendant,  not  regarding  its  duty  in  that  behalf, 
so  negligently,  carelessly,  unskillfully  and  improperly  manu- 
factured and  put  up  for  sale  and  sold  and  put  upon  the  market 
for  public  use  as  aforesaid  the  said  package  of  mince  meat  so 
sold  and  delivered  as  aforesaid  by  the  defendant  to  said  S  & 
Co.  and  by  said  S  &  Co  to  said  H  and  by  said  II  to  said  S,  and 
by  her  duly  made  into  a  pie,  duly  prepared  for  food  for  her 
family  of  which  the  said  J  was  a  member  as  aforesaid;  that 
by  and  through  the  carelessness  and  negligence  of  the  said 
defendant,  its  servants  and  employees,  in  the  manufacture  and 
putting  upon  the  market  of  the  said  package  of  mince  meat, 
the  same  became  and  was  poisonous  and  destructive  to  human 
life. 

2.  And  that  it  was  also  then  and  there  the  duty  of  the  said 
defendant  to  so  manage  and  conduct  its  business  that  only 
pure  and  wholesome  mince  meat  should  be  so  manufactured  by 
and  put  up  and  put  upon  the  market  by  it  for  sale  to  and 
use  by  the  public,  as  aforesaid,  and  to  put  the  same  up  in  such 
packages  or  in  a  manner  suitable  to  keep  and  preserve  such 
mince  meat  in  a  pure  and  wholesome  condition  as  food  for 
whomsoever  should  become  a  purchaser  thereof  and  use  the 
same. 

Yet,  the  defendant,  not  regarding  its  duty  in  this  behalf,  so 
carelessly,  negligently,  unskillfully  and  improperly  conducted 
its  said  business  in  the  making  and  putting  up  for  sale  of  the 
said  mince  meat  that  by  and  through  the  carelessness,  negli- 
gence and  unskillfulness  and  default  of  itself  and  its  servants 
in  the  selection  of  the  material  and  in  the  manufacture  of  said 
package  of  mince  meat  and  in  the  enveloping  and  putting  the 
same  up  for  sale  and  use  as  food  as  aforesaid,  the  same  then 
and  there  became  and  was  unfit  for  food  and  unwholesome, 
and  a  deadly  poison  and  destructive  to  human  life,  which  the 
defendant,  its  servants  and  employees,  well  knew,  or  by  the 
exercise  of  reasonable  care  and  caution  in  the  preparation 
thereof  might  have  known,  to  be  poison  and  destructive  to 
human  life. 


PERSONAL   INJURIES  1019 

3.  And  it  was  also  then  and  there  the  duty  of  said  defend- 
ant to  manufacture  and  sell  to  the  trade  for  public  use  as 
aforesaid  only  such  mince  meat  as  was  pure  and  wholesome  and 
not  injurious  to  life  and  health  of  individuals  or  poisonous 
when  duly  prepared  for  and  used  as  food  by  those  to  whom 
it  should  come  in  due  course  of  trade  for  use  and  consump- 
tion; and  also  put  the  same  up  and  envelope  the  said  mmce 
meat  in  such  suitable  covers  and  in  such  manner  as  to  pre- 
vent and  keep  the  same  from  becoming  unwholesome  and 
poisonous  and  destructive  to  human  life  in  course  of  trans- 
mission from  the  said  manufacturer  to  the  said  consumer  m  the 
due  and  usual  course  of  trade. 

Nevertheless,  the  defendant,  not  regarding  its  duty  in  this 
behalf,  so  carelessly,  negligently,  unskillfully  and  improperly 
conducted  its  business  in  th€  making  and  compounding  of  said 
mince  meat  and  putting  the  same  up  for  sale  that  by  and  through 
the  carelessness,  negligence,  unskillfulness  and  default  of  the 
defendant,  its  servants  and  employees  in  the  selection  of  material, 
the  manufacture  of  said  mince  meat  and  in  the  manner  of  en- 
veloping the  same  in  packages  for  sale  to  the  trade  and  to  the 
public,  a  certain  package  of  said  mince  meat  so  manufactured 
and  put  up  and  sold  by  the  defendant  as  aforesaid,  was  so  care- 
lessly, negligently  and  improperly  made  and  compounded  and 
was  so  defectively  put  up  and  enveloped  for  sale  to  the  trade 
and  to  the  public  that  the  same  then  and  there  became  and  was, 
and  was  well  known  to  the  defendant,  or  by  the  exercise  of  reas- 
onable care  and  caution  in  the  manufacture  thereof  might  have 
been  known  to  the  defendant,  its  servants  and  employees,  to  be 
unwholesome,  poisonous  and  destructive  to  human  life. 

And  that  said  package,  having  come  into  the  hands  of  one  H 
in  the  usual  course  of  his  trade  as  retail  dealer  in  groceries 

and  provisions  at in  the  county  of 

and  state  of  Illinois,  was  by  him  sold  in  the  usual  course  of  his 
trade  to  one  S  of  the  same  place  for  consumption  and  use  as 
food  in  her  family;  that  said  J,  testator  of  the  plaintiff,  was 
then  and  there  a  member  of  the  family  of  the  said  S ;  that  said 
S  then  and  there  duly  made  said  package  of  mince  meat  or  part 
of  the  same  into  a  pie,  whereof  the  said  J,  as  a  member  of  her 
family,  without  negligence  on  his  part,  did  eat  as  he  lawfully 
might,  believing  said  pie  to  be  fit  and  wholesome  for  food,  and 
was  then  and  there  poisoned  and  made  sick  and  died  in  conse- 
quence thereof  at  

And  plaintiff  avers  that  she  was  the  wife  of  the  said  J,  her 
testator  as  aforesaid,  and  so  continued  to  be  until  the  time 
of  his  death ;  and  that  the  said  J,  on  the  day  aforesaid,  and  for 
a  long  time  previous  thereto,  was  a  contractor  and  builder  and 
derived  from  his  said  business  and  employment  a  yearly  income 

of,  to  wit, dollars ;  and  by  means  thereof  was 

enabled  to  and  did  provide  a  comfortable  and  liberal  mainte- 
nance for  himself  as  well  as  for  the  plaintiff,  his  wife;  and 


1020  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

that  by  the  death  of  the  said  J  as  aforesaid,  so  by  the  defend- 
ant caused  as  aforesaid,  plaintiff  is  injured  in  her  means  of 
support  and  is  deprived  of  the  same,  and  is  compelled  to  sup- 
port herself  by  her  own  exertions. 

And  plaintiff  further  avers  that  it  is  provided  in  section  .... 

of  chapter  ....  of  the  general  statutes  of  the  state  of , 

enacted  in  the  year ,  19-  •,  and  in  section  ....  of  chapter 

....  of General  Statutes  of  ,  compiled 

in  the  year  .  ..  .,  19.  .,  and  now  in  full  force  and  effect,  that 
"when  the  death  of  one  is  caused  by  the  wrongful  act  or 
omission  of  another,  the  personal  representatives  of  the  former 
may  maintain  an  action  therefor  against  the  latter  if  the  former 
might  have  maintained  an  action  against  the  latter  for  an 
injury  for  the  same  act  or  omission.  And  that  the  damages 
cannot  exceed  ten  thousand  dollars  and  must  inure  to  the  ex- 
clusive benefit  of  the  widow  and  children,  if  any,  or  next  of 
kin,  to  be  distributed  in  the  same  manner  as  personal  prop- 
erty of  the  deceased."    Wherefore,  etc. 

1597  Premises  unsafe,  action 

The  owner  or  occupant  of  land  is  liable  to  persons  who  are 
invited  through  independent  contractors  to  go  upon  the  premises 
and  injury  results  from  its  unsafe  condition,  if  such  condition 
is  known  to  the  owner  or  occupant  and  is  not  known  to  the  per- 
son injured.215 

1598  Protecting  property  from  another's  negligence,  action 

An  action  for  damages  is  maintainable  against  a  person  or 
corporation  whose  negligence  causes  injury  to  or  death  of  another 
person  while  attempting  to  save  or  protect  his  property  from 
such  negligence  and  the  effort  to  save  it  is  such  as  an  ordinary 
prudent  person  would  make  under  the  particular  circum- 
stances.216 

1599  Pulley  bursting,  machinist  injured,  Narr.  (W.  Va.) 

And  thereupon  the  said  plaintiff  says  that  said  defendant 
was  then  and  there,  at  and  before  the  time  of  the  committing 

of  the  grievances  hereinafter  mentioned,  to  wit,  on  the 

day  of ,  19.  .,  the  owner,  operator  and  proprie- 
tor of  a  certain  large  mill  or  foundry  located  in  said  county 

of and  state  of  West  Virginia,  and,  being  such 

owner,  operator  and  proprietor,  was  then  and  there  engaged 

215  Calvert  v.   Springfield  Electric  216  Illinois  Central  B.  Co.  v   Siler. 

Light  &  Power  Co.,  231  111.  290,  293      229  111.  396.    For  Narr.,  see  Section 
(1907).  1550. 


PERSONAL   INJURIES  1021 

in  manufacturing,  milling  and  finishing  iron  molds  and  cast- 
ings. The  plaintiff  avers  that,  in  said  mill  or  foundry  as  afore- 
said, there  was  then  and  there  a  certain  large  gas  engine  and 
two  other  gas  engines  of  smaller  size  and  a  generator  on 
each  side  of  said  gas  engines,  which  said  gas  engines  and 
generator  were  then  and  there  used  for  the  purpose  of  gen- 
erating and  were  generating  electricity  of  great  po^yer  and 
force,  which  said  electricity  was  then  and  there  transmitted  by 

wires  to  a horsepower  electric  motor  located  on 

top  of  a  certain  machine  known  as  an  "end  milling  machine" 
used  for  the  purpose  of  milling  and  finishing  the  ends  of  cast- 
ings. The  said  gas  engine  and  generator,  being  used  to  gen- 
erate electricity  as  aforesaid  and  the  said  electricity  being  so 
generated  and  transmitted  as  aforesaid,  were  then  and  there 
used  to  move  and  work,  and  were  moving  and  working  said 
electric  motor  as  aforesaid.  And  the  said  electric  motor  in 
turn  was  then  and  there  used  to  move  and  work  and  was  mov- 
ing and  working  machinery,  mill  gearing,  shaftings,  belting 
and  pulleys,  and  said  mill  gearing,  shafting,  belting  and  pul- 
leys were  then  and  there  used  to  move  and  work  and  were 
moving  and  working  said  "end  milling  machine,"  used  as 
aforesaid. 

The  plaintiff  further  avers  that  the  said . 

company,  being  such  owner,  operator  and  proprietor  of  said 
mill  or  foundry  in  said  county  and  state  aforesaid,  and  being 
so  engaged  as  aforesaid,  then  and  there  employed  said  plain- 
tiff for  hire  and  wages  to  take  charge  of,  run  and  operate 
the  said  "end  milling  machine"  described  and  used  as  afore- 
said; and  that  it  then  and  there  became  and  was  the  duty  of 
said  defendant  to  use  proper  care  and  caution,  that  the  plain- 
tiff should  be  provided  with  good,  proper,  safe  and  suitable 
machines  and  appliances  and  especially  to  provide  good,  safe, 
proper  and  suitable  belting  and  pulleys  to  be  used  by  him  in 
said  employment  as  aforesaid,  and  that  the  said  plaintiff  should 
be  secure  and  safe  in  all  respects  in  his  employment  froni  any 
injury  or  accidents  incident  thereto,  against  which  ordinary 
care  and  caution  could  avail,  while  so  engaged  by  and  for  said 
defendant  in  said  work ;  yet,  the  said  defendant  not  regarding 
its  duty  in  that  behalf  did  not  use  proper  care  and  caution 
that  said  plaintiff  should  be  provided  with  good,  proper,  safe 
and  suitable  machines,  appliances,  belting  and  pulleys  to  be 
used  by  him  in  said  employment  as  aforesaid;  and  that  said 
plaintiff  should  be  secure  and  safe  in  all  respects  in  his  em- 
ployment against  which  ordinary  care  and  caution  could  avail, 
while  so  engaged  by  and  for  said  defendant  in  said  work  from 
or  against  any  injury  or  accident  incident  thereto ;  but,  wholly 
neglecting  its  duty  in  that  behalf  and  to  the  contrary,  said 
defendant  provided  for  and  suffered  to  be  used  by  said  plain- 
tiff, in  and  while  engaged  in  operating  said  "end  milling 
machine"  for  the  purpose  and  use  of  milling  and  finishing 


1022  ANNOTATED   FORMS   OF    PLEADING   AND    PRACTICE 

ends  of  castings,  along  with  the  pulleys  aforesaid,  a  certain 
cracked,  insecure,  weak,  unsafe  and  unsuitable  pulley,  and  a 
certain  unsafe  and  unsuitable  belling  located  at  the  lower  left 
corner  of  the  central  portion  of  said  "end  milling  machine;" 
all  of  which  was  to  the  plaintiff  unknown. 

And  the  last  mentioned  pulley,  because  of  its  being  cracked 
and  because  of  its  insecurity,  weakness,  unsafeness  and  unsuit- 
ability,  of  said  last  mentioned  belling,  all  of  which  was  to  the 
plaintiff  unknown  as  aforesaid,  and  while  it  was  then  and  there 
being  used  as  aforesaid,  and  while  the  said  plaintiff  was  then 
and  there  using  the  said  "end  milling  machine,"  for  the  pur- 
pose and  use  aforesaid,  to  wit,  for  milling  and  finishing  ends 
of  castings  as  aforesaid,  broke  and  parted  and  a  portion  thereof 
struck  the  plaintiff  on  the  head  with  great  force  and  violence, 
whereby  said  plaintiff  then  and  there  became  and  was  dazed 
and  was  then  and  there  thro^vn  down  and  one  of  his  arms,  to 
wit,  the  right  arm,  was  caught  in  said  last  mentioned  and  de- 
scribed pulley  and  belting  aforesaid  and  was  torn  and  cut 
off  about  two  inches  below  the  elbow,  that  the  elbow  joint  was 
so  badly  crushed  by  said  last  mentioned  pulley  and  the  belting 
aforesaid,  that  it  then  and  there  became  and  was  necessary  for 
the  surgeon  in  attendance  to  amputate  the  said  right  arm 
above  the  elbow;  and  the  plaintiff  was  otherwise  badly  bruised, 
hurt  and  injured,  and  so  remained  for  a  long  space  of  time, 
to  wit,  from  thence  hitherto,  during  all  which  time  the  plaintiff 
suffered  and  underwent  <:reat  pain  and  anguish  of  body  and 
mind  and  was  thereby  prevent 'm1  from  attending  to  and  fol- 
lowing his  usual  avocation,  to  wit,  that  of  a  machinist,  and  from 
earning  large  sums  of  money  from  said  avocation,  which  but 
for  said  injury  he  would  have  earned  and  received ;  and  by 
means  of  the  premises,  said  plaintiff  became  permanently 
injured  and  crippled,  and  will  so  remain  during  the  rest  of  his 
natural  life. 

Wherefore,  said  plaintiff  says  that  he  has  been  injured  and 
has  suffered  damages  by  reason  of  the  negligence  of  said  de- 
fendant in  the  sum  of ($ )  dollars,  and 

therefore  he  brings  this  suit. 

1600  Railroad  crossing-,  gate  ordinance,  action 

It  is  the  duty  of  railroad  companies  to  take  notice  of  properly 
passed  ordinances  for  the  construction  of  gates  at  railroad 
crossings.-^''' 

1601  Railroad  crossing,  Narr.  (Fla.) 

For  that  whereas  the  defendant  in  said was 

on  the day  of the  owner  of  and  did  on 

2i7EosentLal  v.  Chicago  &  Alton  27,  par.  62  (Sec.  1,  art.  0),  Cities 
B.  Co.,  255  111.  552,  558  (1912);  CI.       and  Villages  act    (111.). 


PERSONAL  INJURIES  1023 

said  date  own  and  conduct  and  operate  a  railroad  business  in 

said  county  of  and  state  of  Florida  by  then 

and  there  running  engines  and  cars  on  its  said  railroad  track 
in  said  county  and  state,  which  said  railroad  track  extended 

through  the  city  of in  the  county  of 

and  state  of  Florida,  and  was  operating  and  conducting  the 
same  subject  to  all  the  rules  and  regulations,  restrictions, 
liabilities  and  provisions  of  law  applicable  to  railroads  doing 
business  under  the  laws  of  the  state  of  Florida;  that  on  the 

day  of ,  19  •  • ,  the  plaintiff  had  occa- 
sion to  walk  a  short  distance  on  the  railroad  track  of  the 
defendant  at  a  point  about yards  west  of 

station  in  county,  Florida,  and  about 

...... '. '.  yards  east  of  where  one  of  the  public  streets  of  said 

\[[\ crosses  the  said  track  of  the  defendant,  the  same 

being  then  and  there  used  as  a  public  crossing  of  said 

in  the  usual  course  of  foot  travel,  as  had  been  and 

was  then  the  custom,  then  and  there  and  before  and  since  to 
be  used  as  a  public  thoroughfare  by  the  citizens  of  said  city 
with  the  knowledge  and  consent  of  the  said  defendant  then 
and  there  and  since  then  and  for  several  years  previous  to 
said  date  with  the  knowledge  and  consent  of  said  defendant; 
and  while  the  plaintiff  was  then  and  there  using  due  caution 
as  a  reasonable  and  prudent  man  without  any  negligence  on 
his  part,  the  defendant  then  and  there  by  its  agents,  servants 
and  employees  ran  one  of  its  trains  at  a  great  and  unlawful 
rate  of  speed  without  giving  any  warning  of  approach  of  same 
by  ringing  a  bell  or  blowing  a  whistle,  and  carelessly  and 
negligently  and  wantonly  ran  said  train  unlawfully  as  afore- 
said along  the  track  of  said  defendant  as  aforesaid,  and 
struck  the  said  plaintiff  violently  and  then  and  there  ran  up 
to,  against  and  over  plaintiff  and  thereby  then  and  there  ran 
over  and  crushed  and  mashed  off  both  of  plaintiff's  legs,  and 
thereby  rendering  the  plaintiff  wholly  incapable  of  earning  a 
livelihood  for  himself,  and  thereby  causing  the  plaintiff  great 
pain  and  suffering  and  agony  and  permanent  injury  to  the 

plaintiff. 

And  the  plaintiff  further  charges  that  before  and  up  to  the 
time  of  the  injury  aforesaid  he  was  a  strong  and  healthy  man 

of    years,  was  earning  wages  at  the  rate  of 

to  ' '//. per  day  and  was  receiving  that  amount  per 

day  when* the  aforesaid  injury  occurred;  and  that  plaintiff  is 
an  uneducated  man  and  unable  to  earn  a  living  for  himselr 
except  by  manual  labor;  and  that  he  is  now  wholly  without 
means  of  earning  a  living  for  himself  on  account  of  the  injury 
aforesaid;  which  injury  was  then  and  there  caused  by  the 
carelessness  and  negligent  way  in  which  defendant  by  its 
agents  servants  and  employees  were  then  and  there  running 
said  train ;  that  the  said  train  was  then  and  there  running  at  a 
great  and  unlawful  rate  of  speed  and  without  ringing  a  bell 


1024  ANNOTATED   FORMS   OF    PLEADING    AND   PRACTICE 

or  blowing  a  whistle,  and  that  the  same  was  along  a  public 

much  traveled  thoroughfare  in  said   and 

within yards  of  a  public  street  crossing  of  said  .... 

in  a  thickly  populated  section  of  said ; 

and  that  the  negligent,  careless  and  unlawful  way  in  which 
said  defendant  by  its  agents,  servants  and  employees  were  then 
and  there  running  said  train  at  the  time  the  said  injury  afore- 
said occurred  was  without  regard  to  public  safety  and  was 
without  regard  to  the  plaintiff  and  his  rights  as  a  citizen ;  and 
that  because  of  carelessly  and  negligently  injuring  of  plain- 
tiff as  aforesaid  by  then  and  there  striking  him  and  running 
over  him  and  cutting  and  mashing  oft'  both  of  plain1iff"s  legs 
as  aforesaid  with  defendant's  train  as  aforesaid,  and  thereby 
permanently  injuring  plaintiff  as  aforesaid,  the  plaintift'  is 
thereby  deprived  of  any  means  of  making  and  earning  a  liv- 
ing for  himself;  and  plaintiff  has  also  suffered  other  internal 
injuries  and  has  otherwise  suffered  great  pain  and  agony  by 
reason  of  the  injury  aforesaid ;  therefore,  plaintiff  claims  dam- 
ages in  the  sum  of dollars. 

2.  And  for  a  second  count  the  plaintiff  avers  each  and 
every  allegation  of  the  first  count  and  further  avers  that  the 
striking,  the  wounding,  the  crushing  and  the  mashing  off  the 
legs  of  plaintiff  by  defendant's  train  as  aforesaid  was  caused 
by  the  gross  carelessness  of  defendant's  agents,  servants  and 
employees  in  running  said  train  at  a  groat  and  unlawful  rate 

of  speed,   to  wit,    miles   per   hour   contrary   to   the 

laws  of  the  state  of  Florida,  being  less  than miles  of 

said  depot  aforesaid,  and  within   yards  of  a  street 

crossing  of  said aforesaid,  and  the  negligence 

of  the  defendant's  agents,  servants  and  employees  in  not  seeing 
the  plaintiff  as  aforesaid  as  the  plaintiff  was  then  and  there  in 
full  view  of  the  said  train,  and  also  by  said  agents,  servants 
and  employees  of  the  defendant  failing  to  ring  the  bell  and 
blow  a  whistle  and  give  plaintiff  warning  in  time  for  him  to 
get  off  the  said  track  and  thereby  avoid  the  injury  aforesaid; 
and  that  the  running  of  said  train  near  the  depot  aforesaid  in 

a  thickly  populated  section  of  said   aforesaid 

at  and  near  and  across  one  of  the  public  street  crossings  in 

said as  aforesaid  at  such  a  rate  of  speed  as 

aforesaid  in  the  corporate  limits  of  said   was 

gross  negligence  on  the  part  of  the  defendant;  therefore  plain- 
tiff claims  damages  in  the  sum  of dollars. 

3,  And  for  a  third  count  the  plaintiff  avers  each  and 
every,  the  allegations  of  the  first  and  second  counts  and  further 
avers  that  plaintiff  had  the  right  under  the  circumstances  then 
and  there  existing  and  the  conditions  then  and  there  existing 
to  expect  and  believe  that  the  defendant  by  its  agents,  servants 
and  employees  aforesaid  would  operate  its  trains  at  a  rate  of 


PERSONAL  INJURIES  1025 

speed  required  by  law  at  the  place  where  plaintiff  was  then 
and  there  at,  and  that  he  would  be  warned  of  the  approach  of 
said  train  by  the  blowing  of  a  whistle  and  the  ringing  of  a  bell 
as  required  by  law  of  trains  running  through  incorporated 
towns  and  cities  and  across  public  street  crossings ;  and  that  if 
such  had  been  the  case  plaintiff  then  and  there  could  have  and 
would  have  gotten  off  the  track  in  time  to  have  prevented  the 
said  injury  to  happen  as  aforesaid ;  but  that  the  defendant  as 
aforesaid  did  not  give  warning  as  aforesaid  of  the  approach  of 
the  train  as  aforesaid,  nor  did  it  so  operate  its  trains  at  a  rate 
of  speed  required  by  law  under  the  circumstances  then  and 
there  that  would  insure  the  safety  of  plaintiff  and  other  per- 
sons that  might  be  passing  then  and  there,  or  who  might  be 
walking  along  said  street  crossing;  and  the  failure  of  said 
defendant  by  its  agents,  servants  and  employees  aforesaid  to 
so  operate  its  train  at  a  rate  of  speed  then  and  there  as  required 
by  law  and  to  give  warning  of  its  approach  then  and  there  as 
required  by  law,  caused  the  said  injury  aforesaid  to  plaintiff; 
and  that  the  same  was  gross  negligence  on  the  part  of  the 
defendant's  agents,  servants  and  employees  aforesaid  m  so 
operating  said  train ;  and  therefore  plaintiff  claims  damages  in 
the  sum  of dollars,  and  brings  this  suit. 

(Illinois) 

For  that  whereas,  on,  to  wit,  the day  of 

,  19. .,  the  said ,  during  his  life  time,  was 

then  and  there  rightfully  walking  on  a  certain  public  highway 

in  the  city  of ,  in  the  county  of and 

state  of  Illinois,  known  and  called street,  at  a  cross- 
ing of  said  public  highway  and  a  certain  railroad  crossing  of 

the  defendant  in  the  county  of aforesaid,  using 

all  due  diligence  and  care  in  that  regard. 

And  the  defendant  was  then  and  there  possessed  of  a  cer- 
tain locomotive  engine  and  cars  thereto  attached,  commonly 
known  as  a  passenger  train,  which  were  then  and  there  under 
the  care  and  management  of  divers  then  servants  of  the  defend- 
ant, who  were  then  and  there  at  the  place  aforesaid  required 
to  run  said  locomotive  engine  and  cars  thereto  attached  at  a 
proper  rate  of  speed.  But  plaintiff  avers  that  said  locomotive 
engine  and  cars  thereto  attached  were  negligently  and  improp- 
erly, carelessly   and  unskillfully  propelled,   run,   driven   and 

operated  at  a  ^greater  rate  of  speed  than   miles  per 

hour,  and  therein  the  defendant  wholly  failed  and  made  de- 
fault, contrary  to  section   of  the  code  of  the  city  of 

,  state  of  Illinois,  which  recites  among  other  things 

that*'''isro  railroad  corporation  shall,   by  itself  or  employees, 
run  any  passenger  train  upon  or  along  any  railroad  track 

within  the  corporate  limits  of  the  city  of ., 

at  a  greater  rate  of  speed  than miles  per  hour. " 


1026  ANNOTATED  FORMS  OF  PLEADING   AND  PRACTICE 

2.  And  so  being  such  owner  of  and  using  and  operating 
said  railroad,  as  aforesaid,  the  defendant  then  and  there 
negligently  and  carelessly  drove  a  certain  locomotive  engine 
and  cars  thereto  attached  upon  and  along  said  railroad  up 
to  and  across  the  said  public  highway  at  the  crossing  of  the 
same  and  the  said  railroad,  and  in  so  doing  the  defendant  failed 
and  neglected  to  ring  the  bell  or  blow  the  whistle  which  were 
attached  to  said  locomotive  engine,  as  it  was  required  to  do 
by  section  6  of  chapter  114  of  the  Revised  Statutes  of  Illinois 
of  1874,  which  was  in  full  force  and  effect  at  that  time,  to  wit, 

on  the day  of ,  19 . . ,  and  which  recites 

as  follows:  "Every  railroad  corporation  shall  cause  a  bell  of 
at  least  thirty  pounds  of  weight  and  a  steam  whistle  placed 
and  kept  on  each  locomotive  engine,  and  shall  cause  the  same 
to  be  rung  or  whistled  by  the  engineer  or  fireman  at  the  dis- 
tance of  at  least  eighty  rods  from  the  place  where  the  said 
railroad  crosses  or  intersects  any  public  highway,  and  shall  be 
kept  ringing  or  whistling  until  such  highway  is  reached."  But 
plaintiff  avers  that  neither  the  bell  was  rung  nor  the  whistle 
blown  at  the  distance  of  at  least  eighty  rods  from  the  said  public 
highway,  nor  was  the  bell  rung  or  the  whistle  blown  at  the  dis- 
tance of  eighty  rods  from  the  said  public  highway  and  kept 
ringing  or  whistling  until  such  public  highway  was  reached  by 
said  locomotive  engine,  and  that  neither  the  bell  was  ringinf^f 
of  said  locomotive  engine  nor  the  whistle  blowing  when  said 
locomotive  engine  and  cars  thereto  attached  approached  the 
crossing  aforesaid;  but  therein  the  defendant  wholly  failed 
and  made  default  contrary  to  the  provisions  of  the  statute  in 
such  case  made  and  provided  and  above  recited. 

3.  And  so  being  such  owner  as  aforesaid,  and  using  and 
operating  said  railroad  aforesaid,  the  defendant  drove  a  cer- 
tain locomotive  engine  and  cars  thereto  attached  upon  and 
along  said  railroad  up  to  and  across  the  crossing  where  the 

said was  passing  the  tracks  as  aforesaid,  and 

in  so  doing  the  defendant  then  and  there  failed  and  neglected 

to  ring  the  bell  as  by  section  of  the  municipal 

code  of  the  city  of and  state  aforesaid,  it  was 

required  to  do,  and  which  section  was  in  full  force  and  effect 

at  that  time,  to  wit,  the  day  of ,  19 . . , 

and  which  recites  as  follows:  ''The  bell  of  each  locomotive 
engine  shall  be  rung  continually  while  running  within  said 
city  except  locomotives  running  upon  railroad  tracks  situated 

east  of avenue  on  the  shore  of , 

between station  and of  said  city, 

when  no  bell  shall  be  rung  or  whistle  blown  except  as  signals 
of  danger."  But  plaintiff  avers  that  said  place  where  said 
crossed  the  tracks  of  the as  afore- 
said, was  not  east  of avenue  on  the  shore  of 

between and ,  and  that  the  bell 


PERSONAL  INJURIES  1027 

of  said  locomotive  engine  was  not  ringing  continually  while 
running  within  said  city  as  aforesaid,  and  was  not  ringing 
when  said  locomotive  engine  and  cars  thereto  attached  ap- 
proached the  crossing  aforesaid;  but  therein  the  defendant 
wholly  failed  and  made  default  contrary  to  the  provisions  of 
the  section  above  recited. 

4.  And  so  being  such  owner  as  aforesaid,  the  defendant 
then  and  there  at  the  said  crossing  aforesaid  had  its  gateman 
stationed  and  placed  whose  duty  it  was  to  lower  the  gates 
maintained  at  said  crossing  by  the  said  defendant  when  any 
train  was  about  to  cross  the  said  crossing  upon, the  tracks  of 
the  said  defendant,  and  the  said  gateman  wholly  failed  and 

neglected  to  lower  the  gates  at  said  crossing  as  the  said 

was  about  to  cross  the  tracks  of  the 

defendant,  and  therein  the  defendant  wholly  failed  and  made 
default. 

5.  And  so  being  such  owner  as  aforesaid,  and  using  and 
operating  said  locomotive  engine  and  cars  thereto  attached  as 
aforesaid,  the  defendant  then  and  there  at  said  crossing  had  a 
flagman  improperly  stationed  and  placed,  whose  duty  it  was  to 
signal  persons  traveling  in  the  direction  of  said  crossing,  and 
warn  them  of  the  approach  of  any  locomotive  engine  or  any 
impending  danger.     But  plaintiff  avers  that  no   signal  was 

given  to  said by  the  flagman  thus  improperly 

and  negligently  stationed  and  placed  at  said  crossing,  of  the 
approach  of  the  said  locomotive  engine  and  cars  thereto  at- 
tached; but  therein  the  defendant  wholly  failed  and  made 
default. 

6.  And  so  being  such  owner  as  aforesaid  and  using  and 
operating  said  locomotive  engine  and  cars  thereto  attached  as 

aforesaid,  while  the  said was  then  and  there  with 

all  due  care  and  diligence  walking  upon  said  public  highway 
at  said  crossing,  it  became  and  was  the  duty  then  and  there  of 
the  defendant  to  place  upon  said  locomotive  engine  a  fireman 
who  was  reasonably  skilled  in  that  behalf,  whose  duty  it  was  in 
operating  said  locomotive  engine  over  and  upon  its  tracks  at 
and  near  the  point  aforesaid  to  look  ahead  and  give  notice  or 
warning  to  persons  whose  duty  it  was  to  cross  the  tracks  as 
aforesaid,  and  to  be  about  and  upon  the  same  when  said  fire- 
man was  aware  of  persons  being  upon  said  tracks  or  when  by 
the  exercise  of  reasonable  diligence  he  could  have  seen  persons 
upon  said  track.  Yet,  the  said  defendant  in  utter  disregard 
of  its  duty  in  that  behalf  then  and  there  negligently  and  care- 
lessly placed  upon  said  locomotive  engine  a  fireman  who  was 
incompetent  and  unskillful  and  who  possessed  a  defective 
eyesight,  to  wit,  one  of  his  eyes  being  entirely  gone,  and  the 
said  fireman  then  and  there  negligently  and  carelessly  and  by 


1028  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

reason  of  such  defective  eyesight  wholly  failed  to  observe  or 
see  the  said  deceased  who  was  approaching  the  track  from  the 
same  side  that  the  said  fireman  was  stationed  upon  said  engine, 
and  warn  the  said  deceased  of  the  approach  of  said  locomotive 
engine. 

7.  And  being  such  owner  of  and  using  and  operating,  as 
aforesaid,  the  said  locomotive  engine  and  cars  thereto  attached, 
the  said  locomotive  engine  and  cars  thereto  attached,  as  afore- 
said, while  the  said ,  deceased,  was  then  and  there 

with  all  due  care  and  diligence  on  his  part,  walking  upon  said 
public  highway  at  said  crossing  aforesaid,  the  defendant  tlien 
and  there  by  its  servants  so  carelessly  and  improperly  drove 
and  managed  its  said  locomotive  engine  and  cars  thereto 
attached  by  running  the  same  at  a  high  rate  of  speed  and  by 
failing  to  keep  a  proper  watch  for  persons  about  to  pass  over 
said  crossing,  or  to  give  such  signals  as  would  apprise  such  per- 
sons using  due  care  and  diligence  of  the  approach  of  the  said 
locomotive  engine  and  the  cars  thereto  attached,  and  by  fail- 
ing and  neglecting  to  stop  or  endeavor  to  stop  said  locomotive 
engine  and  cars  thereto  attached  so  as  to  prevent  injury  to  the 
said upon  said  crossing. 

By  means  and  in  consequence  of  which  default  and  neglect 
of  the  defendant,  as  aforesaid,  the  said  locomotive  engine  and 
cars  thereto  attached  then  and  there  struck  with  great  force  and 

violence  upon  and  against  the  said  who  was 

then  and  there  thrown  with  great  force  and  violence  to  and 
upon  the  ground  there,  and  was  then  and  thereby  greatly 
bruised,  torn,  hurt,  wounded,  mangled  in  his  limbs  and  divers 
bones  of  his  bod}^  were  broken  and  injured,  whereby  and  where- 

from  he  died  on  the day  of ,  19 .  . ,  in  the 

county  aforesaid.     (Add  last  two  paragraphs  of  Section  1495) 


For  that  whereas ,  on,  to  wit,  the day 

of ,  19 . . ,  in  the  town  of ,  in  said 

county,  the  plaintiff  was  walking  along  and 

upon  a  certain  public  highway  known  as in 

said  town  of at  the  intersection  of  said 

with  another  public  highway  there  known  as   

in  said  town  of in  said  county  of 

;  and  whereas  the  defendant  was  then  and  there 

operating  a  certain  railroad  upon  and  along  the  said  public 

highway  known  as ,  in  the  town  of 

aforesaid,  and  was  then  and  there  operating  a  certain  locomo- 
tive engine  with  a  certain  train  of  cars  then  attached  thereto, 
■which  said  locomotive  engine  and  train  were  then  and  there 


PERSONAL  INJURIES  1029 

under  the  control,  care  and  management  of  divers  then  seiyv- 
ants  of  the  defendant,  who  were  then  and  there  driving  the 
same  upon  and  along  the  said  railroad  near  and  towards  the 
crossing  of  said  and •  •  •  •  •  •  •  afore- 
said and  while  the  plaintiff,  with  all  due  care  and  diligence  was 
then  and  there  walking  across  the  said  railroad  at  the  said 
crossing  upon  the  said  public  highway  there,  the  defendant 
then  and  there,  by  its  servants,  so  carelessly  and  improperly 
drove  and  managed  the  said  locomotive  engine  and  tram  that 
by  and  through  the  negligence  and  improper  conduct  of  the 
defendant  by  its  said  servants  in  that  behalf,  the  said  locomo- 
tive engine  and  train  then  and  there  ran  and  struck  with 
great  force  and  violence  upon  and  against  the  said  plaintiff  and 
thereby  the  plaintiff  was  then  and  there  thrown  with  great 
force  and  violence  to  and  upon  the  ground  there  and  was 
thereby  then  and  there  injured  as  hereinafter  alleged. 

2     And  for  that  also  whereas  at  the  time  of  the  commit- 
ting of  the  grievances  hereinafter  stated,  there  was  in  force 

in  the  town  of in  said  county,  an 

ordinance  in  words  following,  to  wit: 

"No  railroad  corporation  shall  by  itself,  agents  or  employees 
run   any  passenger  train  upon  or  along  any   railroad   track 

within  the  corporate  limits  of  the  town  of  at  a 

greater  rate  of  speed  than  ten  miles  per  hour,  nor  shall  any 
such  corporation,  by  itself,  agents  or  employees,  run  any  freight 
car  or  cars  upon  or  along  any  railroad  track  within  said  town 
at  a  greater  rate  of  speed  than  six  miles  per  hour." 

Yet,  the  defendant,  on  the day  of  .... . . , 

at  the  said  town  of in  the  county  aforesaid,  was 

possessed  of,  using  and  operating  a  certain  railroad  track  cross- 
ing a  certain  public  street  there  known  as in  the 

said  town  of  ,  and  wholly  disregarding  said 

ordinance,  and  in  violation  thereof,  on  said day  of 

,  at  the  said  town  of   ,  m  the 

county  aforesaid  ran  a  certain  freight  train  upon  and  along 
a  certain  railroad  track  within  the  corporate  limits  of  said 

town  of  ,  to  wit,  at  the  crossing  of  said 

and at  a  greater  rate  of  speed  than 

[   miles  an  hour,  in  consequence  of  which  a  certain 

locomotive  engine  drawing  a  certain  freight  train  run  by  the 
defendant,  ran  against  and  struck  the  plaintiff,  who  was  then 
and  there,  with  all  due  care  and  diligence  walking  along  and 

upon  said       across  said  railroad  track  at  said 

crossing,  and  thereby  the  plaintiff  was  then  and  there  with 
great  force  and  violence  thro^vn  to  and  upon  the  ground  there, 
and  was  thereby  then  and  there  injured  as  hereinafter  alleged. 

3      And  for  that  whereas  also  the  defendant,  on  the  ........ 

day  of  in  the  town  of ,  in  the 


1030  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

county  aforesaid,  was  possessed  of  and  used  and  operated  a 
certain  railroad  extending  through  a  part  of  the  county  afore- 
said,  which   said  railroad   crossed   a   certain  public   highway 

there,  to  wit, ,  in  said  town  of , 

in  the  county  aforesaid,  at  a  certain  place  in  the  said  public 
highway  where  the  same  is  intersect t'd  by  another  highway 

there  known  as in  said  town  of , 

in  said  county  of ,  and  so  being  tiie  possessor 

of  and  using  and  operating  the  said  railroad  as  aforesaid,  the 
defendant  then  and  there  drove  a  certain  locomotive  engine 
upon  and  along  the  said  railroad  up  to,  upon  and  across  the 
said  public  highway  known  as at  the  said  cross- 
ing of  the  same  and  the  said  railroad,  and  in  so  doing  no  bell 
of  at  least  thirty  pounds  weight  or  steam  whistle  placed  on 
the  said  locomotive  engine  was  rung  or  whistled  by  the  engi- 
neer or  fireman  thereof  at  the  distance  of  at  least  eighty  rods 
from  the  said  crossing  and  kept  ringing  or  whistling  until 
the  said  crossing  was  reached  by  the  said  locomotive  engine; 
but  therein  the  defendant  wholly  failed  and  made  default  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided ;  by  means  and  in  consequence  of  which  default  and 
neglect  of  the  defendant  as  aforesaid,  the  said  locomotive 
engine  then  and  there  ran  and  struck  with  great  force  and 
violence  upon  and  against  the  plaintiff,  who  was,  then  and 
there,  with  all  due  care  and  diligence,  walking  along  and  upon 

the  said  public  highway  known  as aforesaid 

at  the  said  crossing,  and  thereby  the  plaintiff  was  then  and 
there  with  great  force  and  violence  thrown  to  and  upon  the 
ground  there  and  was  thereby  then  and  there  greatly  bruised, 
hurt  and  wounded  and  divers  bones  of  h,  .  body  were  then 
and  there  broken  and  ..he  was  thereby  greatly  shocked  and 
h. .  nerves  wholly  shattered  and  h..  brain  injured  and  ..he 
became  and  was  sick,  sore,  lame  and  disordered  and  was  other- 
wise greatly  injured  and  so  remained  for  a  long  space  of  time, 
to  wit,  from  thence  hitherto;  during  all  which  time  .  .he,  the 
plaintiff,  sutl'ered  great  pain  and  was  unable  to  sleep  and  was 
prevented  and  hindered  from  attending  to  and  transacting  h.  . 
affairs  and  business,  and  by  means  of  the  premises  the  plaintiff 
was  forced  to  and  did  then  and  there  lay  out  divers  sums  of 

money,  to  wit, dollars,  in  and  about  endeavoring 

to  be  cured  of  h .  .  said  disorders,  wounds  and  hurts  occasioned 
as  aforesaid;  and  plaintiff  avers,  that  by  reason  of  the  injury 
so  received  as  aforesaid,  .  .he  was  and  is  now,  permanently 
injured.    Wherefore,  etc. 

c 

For  that  whereas,  the  plaintiff,  on  the day  of 

,  19.  .,  was  riding  in  a  certain  buggy  drawn  by  a  cer- 
tain horse  upon  and  along  a  certain  public  highway  there,  to 
wit, street,  at  a  certain  crossing  of  the  said 


PERSONAL  INJURIES  1031 

Street  and  a  certain  railroad  of  the  defendant,  in  the  city  of 

,  county  and  state  aforesaid;  and  the  defendant  was 

then  and  there  possessed  of  a  certain  locomotive  engine  with 
certain  passenger  cars  attached  thereto,  which  said  locomotive 
engine  and  cars  were  then  and  there  under  the  care  and  man- 
agement  of  divers  then  servants  of  the  defendant  who  were 
then  and  there  driving  the  same  upon  and  along  the  said  rail- 
road and  near  and  towards  the  crossing  aforesaid. 

And  thereupon  it  became  and  was  the  duty  of  the  defend- 
ant to  ring  the  bell  and  blow  the  whistle  of  said  locomotive 
engine  as  it  was  required  to  do  by  section  6  of  chapter  114  ot 
the  Revised  Statutes  of  Illinois,  which  said  section  was  m  tull 

force  and  effect  at  that  time,  to  wit,  the day  ot 

19. .,  and  which  reads  as  follows :     (Insert  said 

section).  ,         .       , 

Yet  the  defendant  not  regarding  its  duty  in  the  premises 
aforesaid,  and  contrary  to  the  provisions  of  the  statute  in  such 
case  made  and  provided  wholly  failed  and  neglected  to  ring 
the  bell  of  the  said  locomotive  engine  or  blow  the  whistle  at  the 

distance  of  at  least   rods  from  the  crossing,  and  the 

said  public  highway. 

2.  And  also,  thereupon,  it  became  and  was  the  duty  of  the 
defendant's  gateman  stationed  and  placed  there  to  lower  the 
gates  maintained  at  said  crossing  by  the  said  defendant  when 
any  engine  or  train  was  about  to  cross  the  said  crossing  upon 
the  tracks  of  the  said  defendant,  and  to  apprise  travelers  and 
persons  then  and  there  rightfully  walking  or  driving  upon 
the  said  highway  when  it  should  be  safe  to  cross  the  tracks 
of  the  defendant  at  the  point  aforesaid ;  but  plaintiff  avers  that 
the  said  gateman  carelessly  and  improperly  and  negligently 
failed  to  lower  the  gates  at  the  said  crossing  where  the  said 

was  about  to  cross  the  tracks  of  the  defendant ; 

and  further  that  the  said  gateman  carelessly  and  improperly 
raised  the  gates  (which  had  been  lowered  at  the  time  plaintiff 
drove  up  to  the  crossing  aforesaid  to  permit  several  freight 
trains  to  pass  by)  and  signaled  the  plaintiff  to  cross  the  tracks 

aforesaid. 

By  means  and  in  consequence  of  which  default  and  neglect 
on  the  part  of  the  said  defendant,  said  locomotive  engine  and 
cars  then  and  there  struck  with  great  force  and  violence  upon 
and  against  the  buggy  of  the  plaintiff  in  which  he  was  then  and 
there  riding  with  all  due  care  and  diligence,  upon  said  public 
highway,  aforesaid,  and  thereby  the  plaintiff  was  then  and 
there  thrown  with  great  force  and  violence  from  and  out  of 
the  said  buggy  to  and  upon  the  ground  there,  and  was  thereby 
then  and  there  greatly  bruised,  hurt  and  wounded,  divers 
bones  of  his  body  were  and  there  broken,  and  he  became  and 
was  sick,  sore,  lame,  and  disordered,  and  so  remained  for  a 
long  space  of  time,  to  wit,  from  thence  hitherto;  and  as  a 


1032  ANNOTATED   FORMS   OF    PLEADING    AND   PRACTICE 

further  result  of  the  injuries,  so  occasioned,  as  aforesaid,  the 
left  shoulder  of  the  phiintiff  was  dislocated  and  his  slioiUdrr 
blade  badly  bruised  and  ruptured,  his  lef^s  were  bruised  and 
he  was  injured  internally,  his  lungs  and  heart  sustained  serious 
injuries,  from  the  result  of  which  serious  and  peruument  in- 
juries, plaintiff  has  suffered  from  constant  headacht's,  pains  in 
the  back,  and  does  now  suffer  from  constant  headaches  and 
pains  in  the  back,  and  will  hereafter  suffer  from  headaches  and 
pains  in  the  back;  and  as  a  further  result  of  the  injuries  so 
occasioned,  as  aforesaid,  the  plaintiff  suffered  severe  and  ex- 
cruciating bodily  injury  and  gi-eat  mental  torture  and  physical 
anguish  and  pain,  and  will  hereafter  sulfer  severe  and  excru- 
ciating bodily  injury  and  great  mental  torture  and  physical 
anguish  and  pain ;  and  by  means  of  the  premises  plaintiff  has 
been  hindered  and  prevented  from  attending  to  and  transact- 
ing his  affairs  and  business,  and  will  hereafter  be  hindered  and 
pi'evented  fiom  attending  to  and  transacting  his  affaii's  and 
business;  and  phiintitf  is  now  and  will  hereafter  be  deprived 
of  large  gains  and  profits,  whieii  he  might  and  otherwise  would 
have  acquired;  and  plaintiff"  was  forced  to  and  did  then  and 

there  lay  out  divers  sums  of  money,  amounting  to  al)out 

dollars  in  and  about  endeavoring  to  be  cured  of  his  said  wounds, 
hurts,  and  bruises,  occasioned  as  aforesaid;  and  also  by  the 
running  and  striking  of  the  said  locomotive  ui)on  and  against 
the  said  buggy,  aforesaid,  at  the  time  and  place  aforesaid,  the 

said  buggy  then  of  the  value  of dollars,  and  a  certain 

set  of  harness  by  means  of  which  the  said  buggy  was  then  and 
there  attached  to  said  iiorse  then  and  there  of  the  value  of  .... 

dollars,  and  whereof  the  plaintiff  was  then  and  there 

lawfully  possessed,  was  crushed  and  destroyed,  and  then  and 
there  became  and  was  of  no  use  or  value  to  the  plaintiff;  and 
the  said  horse  Avhich  the  plaintiff'  then  and  there  owned,  which 
was  then  and  there  of  the  value  of  dollars,  was  in- 
jured badly  in  the  legs,  and  has  become  of  no  use  or  value  to 
the  plaintiff'.    Wherefore,  etc. 

d 

For  that  whereas,  the  defendant,  the ,  a  corpora- 
tion, on,  to  wit,  the day  of was  pos- 
sessed of  and  using  and  operating  a  certain  railroad  extend- 
ing through  a  part  of  the  county  of and  was  also 

then  and  there  possessed  of  a  certain  locomotive  engine  and 
train  of  cars  attached  thereto,  which  said  locomotive  engine  and 
train  of  cars  were  then  and  there  under  the  care  and  manage- 
ment of  divers  then  servants  of  the  said  defendant ;  that  the 

defendants, corporations,  were  then  and  there 

possessed  of  and  using  and  operating  a  certain  line  of  street 

railway  in  the  city  of ,  county  of and 

state  of  Illinois,  extending  upon  and  along  a  certain  public 
highway  of  said  city,  county  and  state  aforesaid,  known  as 


PERSONAL   INJURIES  1033 

with  certain  electric  cars  running  and  going 

thereon  for  the  conveyance  of  passengers  for  a  certain  reward 
to  the  said  defendants  in  that  behalf  paid;  that  on  said  date 
plaintiff  became  and  was  a  passenger  on  one  of  said  electric 
ears  then  and  there  going  on  said  railway  in  an  easterly  direc- 
tion for  a  certain  reward  in  that  behalf  paid. 

Plaintiff'  further  avers  tliat  it  then  and  there  became  and 

was  the  duty  of  the  said  defendants,  the    , 

to  exercise  reasonable  care  for  his  safety;  but  wholly  neglect- 
ing their  duty  in  this  behalf  and  while  plaintiff"  was  then  and 
there  upon  said  electric  car  in  the  exercise  of  all  due  and  rea- 
sonable care  for  his  own  safety,  the  said  defendants  through 
their  servants  then  and  there  in  charge  of  said  electric  car  and 
said  locomotive  engine  and  train  of  cars,  then  and  there  so 
negligently,  improperly  and  carelessly  managed,  controlled 
and  operated  said  electric  car  and  said  locomotive  engine  and 
train  of  cars  and  each  of  them,  that  they  collided  at  the  inter- 
section of  said  railroad  and ;  and  thereby  plaintiff 

was  then  and  there  thrown  with  great  force  and  violence  from 
and  out  of  said  electric  car  to,  upon  and  against  the  ground, 
pavement,  and  divers  other  objects  there ;  by  means  whereof  he 
was  seriously  injured  in  and  about  the  body,  head  and  limbs, 
both  internally  and  externally,  and  divers  of  tlie  bones  of  his 
body  were  then  and  there  broken,  and  the  muscles  and  liga- 
ments of  his  body  were  then  and  there  torn,  bruised,  and 
lacerated,  and  he  did  then  and  there  receive  a  great  nervous 
shock  from  which  he  will  never  fully  recover;  by  means  whereof 
he  became  and  was  sick,  sore,  lame  and  disordered  and  so  re- 
mained for  a  long  time,  to  wit,  from  thence  hitherto,  and  in  the 
future  will  so  permanently  remain ;  during  all  of  which  time  he 
has  suff'ered  and  will  suffer  great  pain  and  inconvenience  both 
of  body  and  mind  on  account  of  said  injuries;  and  by  means 
of  the  premises  he  has  been  hindered  and  prevented  from 
thence  hitherto  and  in  the  future  will  permanently  be  hindered 
from  transacting  his  affairs  and  business;  and  also  by  means  of 
the  premises  it  became  necessary  and  he  did  expend  large 
sums  of  money  in  and  about  endeavoring  to  be  cured  of  his 
said  injuries,  sickness  and  disorders  occasioned  as  aforesaid, 
and  it  will  be  permanently  necessary  to  expend  large  sums  of 
money  for  said  purpose  in  the  future.    To  the  damage,  etc. 

e 

For  that  whereas,  the  said  defendant,  on  or  about  the 

day  of ,  19.  •,  owned  and  operated  a  cer- 
tain street  railway  for  the  conveyance  of  passengers  for  hire, 

through  certain  portions  of  the  city  of   ,  and 

through  and  along  a  certain  street  called  avenue 

there  in  said  city ;  that  the  said was  on  or  about  the 

date  aforesaid  a  passenger  on  the  car  of  the  defendant  going 
north  on  said  street;  that  there  also  was  a  certain  steam  rail- 


1034  ANNOTATED   FOKMS  OF   i'LEAUlNU    AND   PRACTICE 

way  crossing  at  the  intersection  of  said  street  and 

street  in  said  city ;  that  it  thereupon  became  and  was  the  duty 
of  the  defendant  when  approacliing  said  crossnig  to  exercise 
all  due  and  proper  care  to  ascertain  and  to  know  tiiat  no  rail- 
way trains  were  approaching  that  were  apt  to  run  into  said 
street  car  at  said  crossing;  but  that  in  this  the  defendant 
wholly  neglected  and  defaulted  and  carelessly  and  negligently, 

and  while  said   was  in  the  exercise  of  due  care  for 

her  own  safety,  ran  said  street  ear  in  which  the  said  ....  was 
riding,  through  the  gates  whieli  were  lowered,  breaking  and 
smashing  said  gates,  and  ran  said  street  car  on  to  the  steam 
car  tracks  where  the  said  street  car  was  struck  by  an  approach- 
ing train  and  thrown  from  the  tracks ;  by  means  whereof  the 

said was  knocked  down  from  said  street  car  and 

her  body  and  head  were  bruised,  hurt  and  injured,  internally 
and  externally,  and  she  became  sick  and  sore  and  disabled  and 
so  remained  for  a  long  space  of  time,  to  wit,  from  thence  hith- 
erto, and  that  the  said   is  permanently  injured  and 

disabled  in  mind  and  body,  and  became  liable  to  pay  out  divers 
large  sums  of  money  in  and  about  curing  herself,  to  wit,  the 
sum  of ($ )  dollars ;  to  the  damage,  etc.^^s 

(Maryland) 

For  that  the  defendant  possesses  and  operates  a  railroad 

with  engines  and  cars  thereon  in  said county  and 

state  of  .Maryland;  tliat  at  the  town  of ,  in  said 

county  and  state,  near  the  ])assenger  station  of  the  defendant, 
the  tracks  of  said  d'cfendant's  railroad  cross  the  public  road  at 
grade;  that  the  defendant  (by  its  servants)  so  negligently  and 
unskillfully  managed  said  railroad  and  the  engines  and  cars 

thereon,  in  and  about  said  grade  crossing,  that  a  certain 

,  a  daughter  of  the  eiiuitable  i)laintitr  of  the  age  of 

years,  while  using  said  public  road  in  crossing  the  tracks  of 
said  railroad  at  said  grade  crossing  and  while  exercising  due 

care,  was,  on ,  19-  -,  struck  by  an  engine  and  cars 

of  the  defendant ;  whereby  the  said   .••;•;    ^T'^^ 

thrown  down  and  injured  and,  in  consequence  of  said  injuries, 
then  and  there  died ;  and  that  the  equitable  plaintiff  was,  by 
the  negligence  of  the  defendant,  deprived  of  and  has  lost  the 

service  of  the  said ,  to  which  he  was  entitled,  and 

has  suffered  great  mental  pain  and  suft'ering  as  the  result  of 
the  said  negligence  of  the  defendant;  whereupon,  the  plaintiff 

brings  this  suit  and  claims dollars  damages 

therefor. 

218  Casey  v.  Chicago  City  By.  Co., 
237  111.  140    (1908). 


PERSONAL   INJURIES  1035 

(Michigan) 

For  that  whereas,  heretofore,  on,  to  wit,  the day  of 

,  19. .,  and  for  a  long  time  prior  and  subsequent  to 

said  date,  the  said  defendant  was  possessed  of,  maintained  and 
operated  a  certain  railroad  passing  through  said  county  of 

state  aforesaid,  from  the  city  of 

in  said  state,  to  the  city  of in  the  state  of 

,  which  said  railroad  is  double-tracked,  and  inter- 
sects and  crosses  a  certain  public  street  or  highway  known  as 

avenue,  in  the  city  of in  said 

county,  said  street  passing  through  said  city  in  a  northerly 
and  southerly  direction,  and  said  railroad  approaching  and 
crossing  the  same  in,  to  wit,  a  northeasterly  and  southwesterly 
course,  and  which  said  street,  before  and  at  the  time  of  com- 
mitting the  grievances  by  said  defendant,  hereinafter  men- 
tioned and  set  forth,  and  from  thence  hitherto  was  and  still 
is  a  common  and  public  highway  for  all  persons  to  go,  return, 
pass  and  re-pass  in  and  upon,  by  and  with  carriages,  wagons 
and  other  vehicles,  also  upon  foot,  at  their  free  will  and  pleas- 
ure, to  wit,  at  the  city  of in  said  county,  and  over 

and  along  which  said  public  street  the  people  of  said  city  of 

,  county  of and  state  of  Michigan, 

were  in  great  numbers  frequently  passing  and  re-passing,  as 
well  on  foot  as  in  carriages,  wagons  and  other  vehicles,  at  their 
free  will  and  pleasure  as  foresaid. 

And  the  said  plaintiff  avers  that  by  reason  of,  to  wit,  build- 
ings, trees,  bushes,  various  poles  and  other  obstructions,  to- 
gether with  an  embankment  caused  by  a  deep  cut  in  grading 
for  said  railroad,  along  and  adjacent  to  the  tracks  and  right 
of  way  of  said  defendant,  on  the  westerly  side  thereof  and 
east  of  said  public  street,  the  locomotives  and  trains  of  cars 
of  said  defendant  on  approaching  said  crossing  from  the  east 
upon  said  railroad  tracks  could  be  seen  but  a  short  distance  by 
persons  approaching  said  crossing  from  the  north  along  and 

upon  said  public  street  or  highway ;  that,  to  wit, 

feet  southwesterly  along  the  northerly  main  track  of  said 
defendant's  railroad  from  its  intersection  with  the  wagon  or 
carriageway  upon  said  public  street,  said  track  did  then  and 
there,  and  still  does,  intersect  and  cross  the  main  track  of  the 

railroad,  a  railroad  then  and  still  maintained  and 

operated  by  the railroad  company,  a  corporation 

between  the  city  of and  the  city  of 

in  said  state  of  Michigan ;  that,  to  wit, ( . . )  feet 

southwesterly  from  said  street  crossing  and,  to  wit, 

( .  . )   feet  northeasterly  from  said  railroad  crossing  with  the 

railroad  track,  on  said  defendant's  right  of  way 

and  on  the  northwesterly  side  of  defendant's  said  tracks,  was 
then  and  still  is  maintained  a  post,  with  board  attached  thereto 
inscribed  with  the  word  "Stop  !"  facing  along  said  defendant's 


1036  ANNOTATED   FORMS   OF    PLEADING    AND   PRACTICE 

track  to  the  northeast  as  a  warning  to  all  trains  runniiif?  to  the 
southwest  over  its  said  track  to  be  stopped  before  passing  said 

"Stop  board"  or  attempting  to  pass  over  the  said  . 

railroad  track  at  said  railroad  crossing;  that,  to  wit, 

( .  . )  feet  northeasterly  from  said  public  street  cross- 
ing was,  at  the  time  aforesaid,  for  a  long  time  i)rior  thereto, 
and  from  thence  hitherto,  maintained  and  kept  on  the  northerly- 
side   of   defendant's   said   track    a   certain    i)ost,    with    board 

attached  inscribed  with  the  words,  "Reduce  speed  to 

miles  per  hour,"  facing  to  the  northeast  along  said  track,  as  a 
regulation  and  warning  for  all  locomotives  and  trains  of  cars 
running  to  the  southwest  over  defendant's  said  road  to  reduce 

speed  not  exceeding (.  . )  miles  per  hour  before 

passing  over  any  of  the  streets  of  the  said  city  of 

and  not  to  run  any  of  its  locomotives  or  trains  of  cars  at  a 

greater  speed  than,  to  wit, ( .  . )  miles  per  hour 

over  or  across  any  of  such  streets;  and  that  at  the  time  and 

place  aforesaid,  on,  to  wit,  the day  of , 

and  at  the  city  of in  said  county,  the  said  defend- 
ant being  then  and  there  possessed  of  and  op<'rating  and  con- 
trolling its  said  railroad,  passing  through  said  county  of 

and  city  of   intersecting  and 

crossing  said  street  thereof   known   as avenue 

as  aforesaid,  and  over  and  across  which  street  crossing  afore- 
said its  locomotives  and  trains  of  cars  propelled  by  steam 
locomotives  were  being  continuously  and  at  frequent  inter- 
vals run  and  propelleil,  it  tiien  and  there  became  and  was  the 
duty  of  the  said  defendant  to  use  and  employ  reasonable 
care,  caution  and  diligence  in  running  and  proi)elling  its  said 
steam  locomotives  and  trains  of  cars  over  and  along  its  said 
railroad,  in  approaching  and  over  and  across  said  public  street 

of  said  city  of known  as . 

avenue,  at  the  crossing  aforesaid,  so  as  not  to  injure  the  said 
plaintiff  or  any  other  persons  lawfully  traveling  over  said 
street  crossing;  to  give  due  notice  and  warning  of  the 
approach  of  any  such  trains  of  cars  or  steam  locomotives  to  all 
persons  lawfully  traveling  along  said  public  street  toward  and 
over   said   street   crossing,   by   sharply   sounding   the   whistle 

upon  any  and  all  such  locomotives  at  least   

( )  rods  before  reaching  said  street  crossing,  and  after 

sounding  the  whistle  to  continuously  ring  the  bells  upon  any 
and  all  such  locomotives  until  such  crossing  should  be  passed; 
to  run  such  locomotives  and  trains  of  cars  over  such  street 

crossing  at  a  moderate  speed  not  exceeding,  to  wit,  

(....)  miles  per  hour ;  to  have  and  maintain  such  proper  look- 
out from  and  control  over  its  said  locomotives  and  trains  of 
cars  as  to  make  the  stops  required  by  law  and  prevent  injury 
to  any  person  or  persons  lawfully  passing  over  or  attempting 
to  pass  over  said  street  crossing ;  to  use,  apply  and  employ  all 
reasonable  necessary  means,  precautions  and  care  within  its 


PERSONAL  INJURIES  1037 

power  to  stop  its  trains,  or  to  otherwise  avoid  injury  to  the 
plaintiff  or  any  other  person  or  persons  known  to  it  to  be  in 
danger  of  injury  while  passing  or  attempting  to  pass  over  said 
street  crossing  aforesaid ;  and  not  to  violate  its  own  rules  and 
regulations  for  running  its  locomotives  and  trains  of  cars  over 
such  crossing,  nor  the  provisions  of  the  ordinance  of  said  city 

of ,  then  and  still  in  full  force  and  effect,  therein - 

regulating  the  speed  of  railroad  trains  while  passing  over 
the  streets  and  avenues  of  said  city,  the  same  being  an  ordi- 
nance entitled  "An  Ordinance  relative,"  etc.,  duly  passed  by 

the  common  council  of  said  city  of  on  the 

day   of    ,   and   still   remaining   in 

force  as  aforesaid. 

And  the  said  plaintiff  further  avers  that,  on,  to  wit,  the  said 

day  of ,  19 .  . ,  at  about  the  hour  of  .... 

o'clock  in  the of  said  day,  at  the  city  of 

in  said  county,  he,  the  said  plaintiff,  together  with  his 

wife,  were  traveling  over  and  along  said  public  street  known 
as  avenue,  in  the  city  of  afore- 
said, from  the  north  and  going  south  to  and  toward  said 
crossing  of  defendant's  main  tracks  of  its  railroad,  upon 
and  over  said  street,  then  and  there  riding  in  a  certain  one- 
seated  carriage  to  which  was  attached  a  certain  single  horse 
of  the  plaintiff',  being  then  and  there  driven  by  the  said  plain- 
tiff to  and  toward  said  last  mentioned  crossing  at  a  moderate 
gait;  that  the  said  plaintiff  and  the  said  wife  in  her  life-time, 
were  then  and  there  using,  exercising  and  employing  all  neces- 
sary, due  and  reasonable  care  and  diligence  on  their  part,  and 
on  the  part  of  each  of  them,  in  and  about  approaching  and  at- 
tempting to  pass  over  said  street  and  railroad  crossing,  and 
all  due  care,  caution  and  diligence  required  to  be  used  on  their 
part,  and  on  the  part  of  each  of  them. 

Yet,  the  said  defendant,  well  knowing  the  premises  and  not- 
withstanding its  duty  to  use  and  employ  all  such  reasonable 
care,  caution  and  diligence  in  running  and  propelling  its  said 
steam  locomotives  and  trains  of  cars  over  and  along  its  said 
railroad,  in  approaching  and  over  and  across  said  public  street 

known  as avenue,  in  said  city  of  , 

so  as  not  to  injure  the  said  plaintiff"  or  his  said  wife,  or  any 
other  person  or  persons  lawfully  traveling  over  said  public 
street  and  crossing ;  to  sound  the  whistle  and  ring  the  bell  upon 
all  its  said  locomotives  approaching  and  passing  said  street 
crossing  as  aforesaid ;  to  run  its  locomotives  and  trains  of  cars 
at  a  moderate  and  lawful  speed  not  exceeding  the  rate  of, 

to  wit, (..••)  miles  per  hour  over  and  across  said  street 

crossing;  to  maintain  and  have  such  proper  lookout  from  and 
control  over  its  said  locomotives  and  trains  of  cars  as  to  be  able 
to  make  the  stops  required  by  law  and  prevent  injury  to  plain- 
tiff or  his  wife,  or  any  other  person  or  persons,  while  passing 
or  attempting  to  pass  over  said  street  crossing ;  and  to  apply 


1038  ANNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

and  use  all  reasonable  and  necessary  care,  precaution  and 
means  to  prevent  injury  to  any  person  or  persons  in  daiif^er  of 
life  or  limb  while  i)assing  or  aUeinpting  to  pass  over  said  public 
street  crossing,  by  stopping  its  locomotives  and  trains  of  cars, 
or  otherwise  avoid  injury  to  the  plaintilf  or  any  otiier  person 
or  persons  while  passing  or  attempting  to  pass  over  such  'gross- 
ing; not  to  violate  its  own  regulations  for  running  its  locomo- 
tives and  trains  of  cars  aforesaid,  nor  the  provisons  of  the 

ordinance   of  the   city   of    above   specified   and 

counted  upon  herein ;  not  to  run  its  locomotives  and  trains  of 
cars  over  said  crossing  at  a  high,  dangerous  and  unlawful  rate 
of  speed  without  having  sounded  the  whistle  upon  any  such 
locomotives  as  an  alai'in  at  such  crossing,  or  to  plaintilf  or 
other  person  or  persons  passing  or  attempting  to  pass  over  the 

same,  until  within,  to  wit feet  of  such  crossing; 

and  not  to  sound  such  whistle  when  so  running  its  locomotives 
and  trains  of  cars  and  within  said  distance  of  such  crossing 
aforesaid,  so  as  to  frighten  the  horse  of  the  plaintiff  or  any 
other  person  while  passing  over,  or  attempting  to  pass  over 
such  crossing  aforesaid,  thereby  causing  or  tending  to  cause 
injury  to  said  plaintiff  or  any  other  such  person,  did  then  and 
there  so  negligently,  wilfully,  recklessly  and  carelessly,  and 
while  the  said  plaintiff  was  driving  with  his  said  horse  and  car- 
riage, as  aforesaid,  over  said  street  crossing,  with  all  due, 
proper  and  reasonable  care,  caution  and  diligence  on  his  part, 
as  also  on  the  part  of  his  said  wife,  run  and  propel  by  steam, 
to  wit,  its  certain  steam  locomotive  and  train  of  baggage  and 
passenger  cars  attached  thereto,  along  said  railroad  to  the 
southwest,  on  the  northwesterly  main  track  thereof,  and  over 
and  across  the  said  public  street  crossing,  at  a  high,  dangerous, 
unlawful,  wilful,  and  reckless  rate  of  speed,  to  wit,  at  the  rate 

of    (••..)    miles   per    hour,    without    having 

sounded  the  whistle  on  said  locomotive  or  rung  the  bell  thereof 
on  approaching  and  passing  over  said  crossing,  as  required  by 
law,  and  without  keeping  any  proper  or  sufficient  lookout  for 
danger  to  said  plaintiff'  and  his  said  wife,  or  other  person  or 
persons  lawfully  traveling  upon  said  street  and  over  said  street 
crossing,  or  having  or  keeping  such  control  over  said  locomo- 
tive and  train  of  cars  last  aforesaid  as  to  make  the  stop 
required  by  law  or  prevent  injury  to  the  said  plaintiff  or  other 
person  or  persons  so  traveling  over  said  street  crossing  as 
aforesaid,  and  without  having  used  and  employed  the  reason- 
ably necessary  means  within  its  power  to  prevent  injury  to 
the  said  plaintiff  and  his  said  wife,  by  stopping  its  said  train 
or  otherwise  avoiding  injury  to  said  plaintiff  and  his  said  wife 
while  passing  over  said  street  crossing  aforesaid,  all  in  neg- 
ligent, wilful  and  reckless  disregard  and  violation  of  its  duty 
aforesaid,  as  also  of  its  own  regulations  and  the  ordinance  of 

said  city  of as  hereinbefore  set  forth  and  alleged ; 

and  said  defendant  did,  then  and  there,  while  said  plaintiff 


PERSONAL   INJURIES  1039 

and  his  said  wife  were  passing  over  such  crossing,  with  all 
due  care,  caution  and  diligence  on  their  part,  as  aforesaid, 

negligently  and  carelessly  give,  to  wit,    sharp, 

short  sounds  with  the  whistle  of  its  locomotive  aforesaid,  in 

rapid  succession,  and  within,  to  wit, feet  of  such 

crossing  and  of  said  horse  and  carriage,  thereby  so  frightening 
said  horse  that  it  then  and  there  turned  suddenly  back  upon 
the  track  of  said  defendant  in  front  of  its  said  locomotive  and 
train  of  cars  aforesaid,  and  became  so  unmanageable  that 
the  plaintiff  was  wholly  unable  to  get  said  carriage  off  such 
track  in  time  to  avoid  accident  and  injury  from  said  locomo- 
tive and  train  of  cars  aforesaid;  whereby  and  by  reason 
whereof  said  locomotive  and  train  of  cars  of  the  said  defend- 
ant with  great  force  and  violence  ran  against  and  collided 
with  said  carriage,  in  which  said  plaintiff  and  his  said  wife 
were  seated  as  aforesaid  and  passing  over  said  crossing  with 
all  proper  care,  caution  and  diligence,  and  without  negligence 
on  their  part,  or  on  the  part  of  either  of  them,  whereby  and  by 
reason  whereof  said  carriage  was  overturned,  broken  to  pieces 
and  destroyed,  and  the  said  plaintiff  and  his  said  wife  were 
thereby,  then  and  there,  with  great  force  and  violence,  struck, 
precipitated,  cast  and  thrown  a  long  distance,  to  wit,  the  dis- 
tance of (....)  feet,  against,  among  and  upon 

divers,  to  wit,  the  ties  and  iron  rails  of  said  defendant's 
northwesterly  main  track  last  aforesaid,  the  wreckage  of 
said  carriage,  plank,  stone  and  posts,  and  upon  the  ground, 
and  were  then  and  there  thereby  greatly  bruised,  wounded, 
mangled  and  crushed,  insomuch  that  the  said  wife  of  said 
plaintiff,  was  thereby  then  and  there  killed,  and  did  then 
and  there  forthwith  die  from  such  injuries  so  received  as 
aforesaid;  that  the  left  foot  and  ankle  and  the  left  arm, 
and  the  bones  thereof,  of  the  said  plaintiff  were  then  and 
there  so  mangled,  torn,  lacerated  and  crushed  by  reason  of, 
to  wit,  the  wheels  of  said  locomotive  having  run  and  having 
passed  over  the  same  that  it  became  and  was  necessary  to 
amputate   said  left   foot   and  leg   at   a  point,   to   wit,   about 

inches  above  the  ankle  joint,  and  his  said  left 

arm  at  a  point,  to  wit,  about   inches  below  the 

elbow ;  and  that  the  said  left  foot  and  left  leg  and  said  left  arm 
of  the  said  plaintiff'  were  thereupon  amputated  on,  to  wit,  the 

....   day  of ,  19.  .,  by  reason  and  in  consequence  of 

the  said  wilful,  reckless,  and  careless  conduct  and  acts  of  said 
defendant,  and  the  injuries  then  and  there  received  as  afore- 
said, and  w^ere  wholly  lost  to  said  plaintiff. 

And  the  said  plaintiff  avers  that,  by  reason  of  the  premises 
aforesaid,  he  became  sick,  sore,  lame  and  crippled  for  life,  and 
has  been  and  is  greatly  injured,  and  put  to  large  expense 
and  trouble  in  and  about  procuring  necessary  nursing,  care  and 
attention  for  himself,  and  in  and  about  the  procuring  of  the 
necessary  care  and  medical  and  surgical  attendance  of  and 


1040  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

for  himself,  and  in  and  about  the  funoral  and  burial  oxponses 
of  his  said  wife;  that  said  plaiulitV  hy  reason  ol'  the  premises 
has  been  caused  great  suffering  of  mind  and  body,  and  pre- 
vented from  following  his  usual  and  necessary  occupation  and 
employment  for  a  long  space  of  time,  to  wit,  from  thence 
hitherto,  and  also  by  reason  of  said  injuries  so  received  by 
him  as  aforesaid,  he,  the  said  plaint ifh",  will  continue  to  suffer 
great  pain  of  body  and  mind  and  will  eoiitinue  to  be  largely 
prevented  from  following  or  carrying  on  his  necessary  avoca- 
tion, employment  or  business,  and  will  also  be  deprived  of  the 
services,  society  and  comfort  of  his  said  wife  for  a  long  space 
of  time,  to  wit,  for  and  during  his,  the  said  plaintiff's  natural 
life.  All  to  the  great  damage  and  injury  of  the  said  plaintiff, 
to  wit,  the  sum  of dollars. 

1602  Railroad  platform,  Narr.  (111.) 

For  that  whereas,  the is,  and  at  all  times  here- 
inafter mentioned  was  a  corporation  organized  and  existing 
under  and  by  virtue  of  the  laws  of  the  state  of  Illinois;  and  as 
such  corporation  was  in  possession  of  and  using  and  operating 

a  steam  railroad  extending  through  the  county  of 

in  said  stute   and  was  then  and  there  and  now 

is  a  common  carrier  of  persons  for  hire. 

That  on  or  about  the   day  of   , 

19..,  plaintiff"  became  a  passenger  on  a  certain  car  of  de- 
fendants on  said  railroad  to  be  carried  from  near 

street  in  the  city  of  to  station  in 

said  city,  county  and  state ;  and  thereupon  was  accordingly 
carried  in  said  car  as  a  passenger  of  defendant,  for  certain 
compensation  then  and  there  paid  to  the  defendant  by  plaintiff. 

And  it  then  and  there  became  and  was  the  duty  of  the 
defendant  to  provide  proper,  suitable  and  safe  platforms  at  its 

said  station  at   on  which  passengers  and 

plaintiff"  in  particular  could  safely  alight  when  leaving  defend- 
ant's cars,  and  so  that  the  public  and  plaintiff*  as  such  pas- 
senger in  particular,  in  alighting  therefrom,  might  do  so  in 
safety  to  life  and  limb;  but  therein  defendant  wholly  failed 
and  made  default,  and  on  the  contrary  thereto  did  carelessly, 
recklessh',  negligently,  Avilfully,  unlawfully,  and  wantonly 
fail  to  furnish  a  proper,  suitable  and  safe  platform  at   the 

said station,  which  was  then  and  there  one  of 

defendant's  regular  stopping  places  and  stations  for  the  receiv- 
ing and  discharging  passengers,  at  the  place  where  plaintiff  was 
required  to  alight  and  on  which  plaintiff  might  safely  alight; 
and  that  by  reason  of  the  carelessness  and  negligence  of  the 
defendant  m  this  behalf,  while  plaintiff*  was  such  passenger 
and  in  the  exercise  of  all  due  care  and  caution,  was  attempting 

to  get  off  of  defendant's  said  car  at  the station, 

she  was  thereby  then  and  there  thrown  with  great  force  and 


PERSONAL   INJURIES  1041 

violence  off  said  car  to,  upon  and  against  the  ground,  and 
upon  and  against  said  car,  and  thrown  backward  striking  her 
head  and  body  against  the  car  and  ground,  and  rendering  her 
insensible  and  unconscious ;  and  plaintiff  was  then  and  there 
and  thereby  disordered  and  injured  and  is  still  languishing 
and  is  intensely  suffering  in  body  and  in  mind,  and  in  the 
future  will  continue  to  suffer  from  the  effects  of  said  injuries 
for  the  rest  of  her  natural  life,  and  she  was  hindered  and  pre- 
vented from  attending  to  her  necessary  business  and  affairs 
and  lost  and  was  deprived  of  divers  great  gains  which  she  might 
and  otherwise  would  have  made  and  accumulated,  and  she 
was  compelled  to  and  did  pay  out,  expend  and  become  liable 
for  the  payment  of  divers  large  sums  of  money  for  doctor  bills, 
drugs,  medicines,  nursing,  care  and  attention  in  and  while  at- 
tempting to  cure  herself  and  to  be  cured  of  the  wounds,  bruises 
and  injuries  occasioned  as  aforesaid. 
"Wherefore,  etc. 

1603  Roof,  covered  hole,  Narr.  (111.) 

For  that  whereas,  on,  to  wit, ,  19.  .,  and  for 

a  long  time  previous  thereto,  at,  to  wit,  the  county  aforesaid, 

the  deceased, ,  was  in  his  life  time,  an  employee  of 

the  said  defendant  D,  in  and  about  the  business  of  making  and 
repairing  boilers,  smoke-stacks,  etc.,  and  was  accustomed  to  do 
his  work  as  a  servant  and  an  employee  of  said  D  in  his  said 
business  wherever  directed  by  said  D. 

And  the  plaintiff  avers  that  on  and  long  previous  to  said  last 
mentioned  date,  at,  to  wit,  the  county  aforesaid,  the  defendant, 
the  S  company  occupied  and  had  possession  of  a  certain  build- 
ing including  the  roof  and  certain  large  pipes  or  smoke-stacks 
protruding  and  extending  through  said  roof  situated  and  being 

on  the  southwest  corner  of and  

streets  in  the  city  of ;  and  being  desirous  of  having 

said  large  pipes  or  smoke-stacks  removed  from  said  roof,  on,  to 

wit,  the day  of ,  19.  .,  at,  to  wit,  the  county 

aforesaid,  applied  to  the  said  defendant,  D,  through  his  serv- 
ants and  employees  to  undertake  the  work  of  removing  said 
pipes  or  smoke-stacks;  that  the  said  defendant  D,  after  an 
examination  of  said  pipes  or  smoke-stacks  on  said  roof,  did,  on, 

to  wit, ,  19.  .,  accede  to  said  request,  and  did 

then  and  there  undertake  and  agree  to  send  his  servants  and 
employees  on  said  roof  to  remove  the  same,  and  accordingly 
did  for  said  purpose,  send  and  direct  his  servants,  including 

said ,  on,  to  wit, ,  19 . . ,  to  go  upon 

said  roof  and  remove  said  large  pipes  or  smoke-stacks;  that 
the  said  roof,  at  the  time  and  place  aforesaid,  had  in  it  near 

one  of  the  stacks,  which  said  was  directed  to 

take  down  and  remove,  a  large  hole  which  was  covered  over 
with  tar  paper  so  that  its  danger  was  hidden ;  that  said  hole 


1042  ANNOTATED   FORMS   OF   PLEADING    AND    PRACTICE 

SO  covered  over  and  without  any  barrier  or  notice  of  its  dan- 
gerous condition,  had  so  existed  for  a  long  space  of  time  pre- 
vious to  said  date,  to  wit,  for  the  space  of weeks ;  that 

the  defendant,  the  S  company,  with  knowledge  of  its  condi- 
tion and  the  situation,  had  known  of  said .  going 

on  said  roof  to  do  his  work,  as  aforesaid,  but  had  given  him 
no  notice  or  warning  of  said  danger;  and  that  the  said  defend- 
ant D  who  also  had  knowledge  of  said  condition  and  whose 
duty  it  was  to  use  reasonable  care  in  providing  a  reasonable 

safe  place  for  said to  do  such  work  wholly 

neglected  and  failed  so  to  do,  or  to  give any  notice 

of  the  dangers  then  existing  on  the  roof  aforesaid. 

And  the  plaintiff  further  avers  that  said ,  while 

in  the  exercise  of  due  care  and  caution  for  his  own  safety,  and 
with  no  knowledge  of  said  danger,  while  in  the  performance 
of  his  work  in  preparing  said  stack  for  removal,  and  in  remov- 
ing the  same,  necessarily  and  unavoidably,  stepped  on  said 
tar  paper  covering  said  hole  as  aforesaid,  and  was  suddenly 
without  any  warning,  precipitated  down  said  hole  for  a  great 
distance,  striking  his  head  and  limbs  against  a  cross-beam  and 
irons  in  there,  whereby,  his  head  was  crushed,  his  logs  and 
body  bruised  and  he  sustained  serious  and  fatal  injuries  from 
which,  in  a  short  time  thereafter,  he  died.  (Add  last  two  para- 
graphs of  Section  1495) 

1604  Running  board  of  street  car,  Narr.  (111.) 

For  that  whereas  the  defendant  before  and  at  the  time  of  the 
grievances  herein  complained  of  was  the  owner  of  and  was 

operating  a  certain  street  railway  in  the  city  of 

in  said  county  and  state,  by  means  of  cars  run  upon  iron  rails 
and  propelled  by  means  of  electricity,  and  that  such  street 
railway  was  operated  by  the  defendant  for  the  conveyance  of 

passengers  for  hire  and  reward ;  that  on  the  day  of 

,  19.  .,  said  plaintiff'  became  a  passenger  upon 

one  of  defendant's  cars  in  the  said  city  to  be  carried  from 

to street  in  said  city  for  a  certain 

reward  to  the  defendant;  and  that  thereupon  it  became  and 
was  the  duty  of  the  defendant  to  safely  carry  the  plaintiff  to 
the  place  of  his  destination  along  the  line  of  said  street  railway. 

Yet,  the  defendant  did  not  regard  its  duty  in  that  behalf,  but 
negligently  permitted  more  persons  to  become  passengers  on 
said  car,  after  the  plaintiff'  had  become  a  passenger,  than  said 
car  would  reasonably  accommodate,  and  b}'  reason  of  such  a 
large  number  of  persons  being  by  said  defendant  so  neglig- 
ently permitted  to  ride  upon  said  car,  a  great  crowd  of  persons 
was  collected  on  said  car  so  that  the  same  became  and  was 
greatly  over-crowded,  and  the  plaintiff  was  thereby  forced  to 
ride  upon  the  platform  and  steps  of  said  car ;  and  while  the 
plaintiff  Avas  in  the  exercise  or  of  ordinary  care  for  his  own 


PERSONAL  INJURIES  1043 

safety  in  so  riding  on  such  platform  and  steps  of  said  car,  the 
crowd  of  persons  so  negligently  permitted  by  the  defendant 
to  take  passage  upon  said  car  and  who  were  then  and  there 
compelled  to  ride  upon  the  platform  and  steps  of  said  car,  were 
by  the  motion  of  said  car  thrown  and  forced  over  and  against 
the  plaintiff,  whereby  the  plaintiff  was  forced  off  and  pushed 
from  the  platform  and  steps  of  said  car  where  he  was  com- 
pelled to  ride  by  reason  of  said  such  over-crowded  condition 
of  such  car. 

2.  And  thereupon  it  also  became  and  was  the  duty  of  the 
defendant  to  run  its  car  at  such  a  rate  of  speed  as  would  be 
least  dangerous  to  the  passengers  on  said  car  commensurate 
with  the  practical  operation  of  said  car. 

Yet,  the  defendant  did  not  regard  its  duty  in  that  behalf, 
but  after  the  defendant  had  taken  passage  on  said  car,  other 
persons  continued  to  come  upon  said  car  with  the  permission  of 
the  defendant,  through  its  servants,  in  such  numbers  that  said 
car  would  not  accommodate  them  and  its  seating  capacity  was 
greatly  over-crowded  by  reason  of  such  number  having  taken 
passage  on  said  car,  and  the  plaintiff  thereby  was  forced,  with 
other  persons,  to  ride  upon  the  steps  and  platform  of  said  car 
which  defendant's  servants  in  charge  of  said  car  then  well 
knew;  that  the  servants  of  said  defendant  so  in  charge  of  said 
car,  not  regarding  their  duty,  negligently  ran  the  said  ear  at  a 
highly  dangerous  rate  of  speed  while  the  plaintiff'  and  other 
l)assengers  were  so  riding  on  the  platform  of  said  car  and  such 
other  passengers  were  surged  and  tossed  over  and  against  the 
plaintiff  by  reason  of  the  excessive  speed  of  said  car,  and 
Avhereby,  while  the  plaintiff  was  using  ordinary  care  for  his 
own  safety,  he  was  crowded  and  pushed  off  the  platform  and 
steps  of  said  car. 

By  means  of  which,  the  wheels  of  said  car  caught  and 
passed  over  the  left  foot  and  leg  of  the  plaintiff  and  the  same 
was  thereby  crushed,  broken  and  lacerated  so  that  it  had  to  be 
and  was  amputated ;  that  by  reason  of  said  injury,  the  plaintiff 
has  endured,  and  will  endure,  great  pain  and  suffering  and  was 
and  is  prevented  from  carrying  on  his  business  and  affairs 
and  was  and  will  be  thereby  deprived  of  great  gains,  and  has 
laid  out  a  large  sum  of  money  for  physician's  services  and  medi- 
cines and  has  become  obligated  to  pay  out  a  large  sum  of  money 
for  nursing,  care  and  medical  treatment  in  being  treated  for 
his  said  injury;  and  that  he  has  sustained  lasting  and  perman- 
ent injuries :  to  the  damage,  etc. 

(Michigan) 

For  that  whereas,  the  defendants  are  common  carriers  of 
passengers  for  hire,  and  as  such  operate  a  line  of  electric  rail- 

Avay  in  the  township  of ,  upon  what  is  known 

as  the   turnpike  highway,  or  the   


1044  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

road,  said  road  being  an  old  establislied  highway  of  an  exist- 
ence of  upwards  of  twenty  years  past. 

And  phiintift"  avers  that  he  being  in  the  village  of 

upon  tlie    day  of    ,  19 .  . ,  and 

desirous  of  going  to  a  ijlaee  known  as 

took  passage  upon  an  electric  car  of  said  defendants,  duly 
manned  by  a  motornian  and  conductor,  and  paid  to  the  con- 
ductor of  defendant  his  fare  by  ticket  for  transportation; 
whereupon,  plaintiff  avers,  that  it  became  and  was  the  duty  of 
the  defendants  to  afford  him  (plaintiff)  a  safe  place  to  ride 
and  safe  ingress  and  egress  from  said  car.  And  i)laintitf  avers 
that  the  defendants,  notwithstanding  their  legal  duty  in  the 
premises,  did  not  afl'ord  to  plaintiff  a  safe  mode  of  exit  from 
said  car.  But  notwithstanding  the  fact  that  plaintiff  notified 
defendants'  conductor  of  where  he  desired  to  alight,  both 
orally  and  by  bell,  the  defendants  and  its  said  servants  pro- 
pelled the  car  in  which  plaintiff  was  at  a  terrific  rate  of  speed, 
and  at  a  rate  exceeding,  in  plaintiff's  judgment,  ....  miles  an 
hour  around  curves  and  figure  S,  formed  by  said  track  at  the 
destination  of  plaintiff,  without  slackening  its  speed;  and 
plaintiff  avtrs  that  he,  believing  that  he  was  to  be  let  off  the 
car  in  which  he  then  was,  at  the  place  indicated,  was  expecting 
said  car  to  slow  up  and  permit  him  (plaintiff) to  alight  in 
safety,  but  that  said  car,  contrary  to  his  expectations,  did 
not  so  slacken  up  its  speed,  but  on  the  contrary  continued 
on  at  its  great  speed,  about  ....  o'clock  in  the  evening;  and 
plaintiff  avers  that  by  the  momentum  and  curve-like  motion  of 
the  car,  so  going,  as  aforesaid,  he  was  thrown  from  the  rear 
l^latform  of  said  car  upon  the  highway  upon  which  said 
electric  car  was  being  propelled  by  the  defendants'  servants 
and  agents,  and  severely  injured  by  the  wrongful  and  negli- 
gent acts  of  the  defendants,  its  servants  and  agents,  and  with- 
out any  wrong  doing  or  contributing  negligence  upon  the  part 
of  plaintiff.  And  plaintiff  avers  that  he  was  seriously  and  per- 
manently injured  by  the  treatment  he  so  received;  that  his  face 
and  head  and  trunk  and  body  and  legs  were  bruised  and  in- 
jured, his  fiesh  bruised  and  his  bones  broken  and  injured,  his 
muscles  and  tendons  and  internal  parts  torn,  wrenched  and 
injured  and  he  himself  permanently  disabled  and  caused  to 
suffer  great  pain  and  injury  and  be  rendered  sick,  sore,  lame 
and  disordered,  a  condition  in  which  he  (the  plaintiff)  has  re- 
mained from  thence  hitherto. 

And  plaintiff  avers  that  he  was  forced  to  employ  nurses, 
physicians,  drugs  and  medicines  in  and  about  the  assuaging  of 
himself  of  his  pain  and  suffering  from  thence  hitherto;  and 
that  he  will  be  forced  to  lay  out  large  sums  of  money  in  the 
future  for  the  same  purpose,  all  to  a  large  sum  of  money,  to 
wit, dollars. 

That  plaintiff's  occupation  is  that  of  a  laboring  man,  he 
being  a  teamster,  and  that  by  reason  of  said  injuries  plaintiff 


PERSONAL  INJURIES  1045 

^vas  hindered  and  prevented  from  following  his  usual  avoca- 
tions from  thence  hitherto,  and  wUl  m^t^e  future  to  his  great 

"Cd  tV'e'pWi-ff 'avers  Wat- he^dM^^^^  r^f  rd'doinis 
other  wrongs  and  injuries  from  the  wrongful  acts  and  doings 
fnd  unlawful  action's  of  the  defendants  without  wrongdoing 

"^li'l'^f  wTicrfs  to   the   great   damage   of  the  plaintiff  of 
_ dollars;  and  therefore  he  brings  this  suit. 

(West  Virginia) 

and  over  ^^^^'^I^X'^l^^^^^^^^^--^ 
and  proprietor' of  certain  cars  and  carriages  propelled  on  and 
"verS  railroad  by  the  means  of  ^l-tncity  for  the  carriage 
of  passengers,  and  was  a  common  carrier  of  passengers  lor 
h  re  and  reward  to  the  said  defendant  in  that  behalf,  from 
and  near  the  state  line  the  eastern  terminus  of  said  railroad 

and  the  intermediate  points  to  the  city  ot  .  . . •  •  • ,  ^o  wit, 

artircounty  aforesaid;  and  the  said  defendant  being  such 
proprietor  of'^the  railroad  and  car  and  carnage,  and  such  com- 
mon carrier  of  passengers  heretofore,  to  wit,  on  the day 

of  . . . .,  in  the  year  19.  .,  the  said     . .  . . .  • .  •  •  •  •  • -, 

at  the 'special  instance  and  request  of  the  said  defendant   be- 

l^Z  nf as  aforesaid,  for  a  certain  fare  and 

Reward  't'o  'the  'said'  'defendant  in  that  behalf,  and  the   said 

defendant  then  and  there  received  the  said .  •  •  •  ^J 

such  passenger;  and  thereupon  it  became  and  ^^^  t^i^.f^uty  of 
the  said  defendant  to  use  due  and  proper  care  that  the  said 

com'pany'on'the  said  journey:  and  it  was  its  duty  to  f™^ 

.T^ti/  a  safe  place  to  ride  in  its  said  car  or 

carriage  'on  's'aid' journey,  and  it  was  the  duty  of  said  defend- 
ant to  furnish  sufficient  cars  or  carriages  to  carry  and  trans^ 

rl^::^y%  ''^  '""''"'  Tyt  Sf  said  defe'ndant^^n^t 
reeardin/its  dut'y  in'that  behalf,  did  not  use  due  and  proper 

oa?e  thTt  the  said     should  be  safely  carried  by  its 

safd  af  or  carr  age  on  his  said  journey,  but  wholly  neglected 
so  to  do  and  suffered  and  permitted  the  car  or  carriage  upon 
wh  ch  the  said  took  passage  to  be  so  greatly 


1U46  ANNOTATED   FORMS   OP    PLEADING    AND    I'HAC'IICK 

over-crowded  -with  passengers  that  the  ruiuiin^'  boar»ls  and 
front  and  rear  platform  and  the  inside  thereof  were  occupied 
and  crowded  with  passengers,  and  while  the  said  car  or  car- 
riage was  so  over-crowded  with  passengers  the  said  defendant 
received   and   accepted  and  collected   the   regular   fare   from 

him,  and  after  the  said had  bcrn  received  and 

accepted  by  the  said  defendant  as  a  passt-nger,  as  aforesaid, 
the  car  or  carriage  of  said  defendant  upon  which  he  took  pas- 
sage was  so  over-crowded  with  i)assengers,  that  the  said  .... 

was  unable  to  secure  a  seat  therein,  but  on  account 

of  the  over-crowded  condition  of  the  said  car  or  carriage  ^yas 
compelled  to  and  did  sit  on  the  edge  and  ridr  on  tlie  outside 
on  what  is  commonly  known  as  the  running  hoards  of  said  car 

or  carriage,  and  aftt-r  receiving  and  accepting  the  said 

as  a  passenger  upon  its  said  car  or  carriage  in  its  then 

over-crowded  condition  and  when  the  said   

was  sitting  and  riding  upon  the  edge  of  said  car  or  carriage 
or  running  boards  as  aforesaid,  the  said  defendant  company  at 
a  great  rate  of  speed,  and  when  the  car  or  carriage  upon  which 

the  said was  then  riding  was  passing  another  car 

or  carriage  of  the  said  defendant  company's  going  in  an  oppo- 
site direction,  at  a  point  on  said  railroad  track  east  of  the  sta- 
tion thereon  known  as so  negligently, 

carelessly     and     decklessly     drove     and     propelled     the     car 

or    carriage    upon    which    the    said 

was    then     and     there     riding  that     the     said 

by  reason  of  the  rocking  and  siiaking  and  jarring  of  said  car 
or  carriage  and  by  reason  of  the  over-crowded  condition  there- 
of, and  the  failure  of  the  defendant  to  furnish  him  a  safe 
place  therein  to  ride  was  thrown  from  the  said  car  or  car- 
riage and  killed. 

And  the  plaintiff  avers  that  by  reason  of  the  matters  and 
things  in  this  count  mentioned  the  plaintiff  has  sustained  dam- 
ages to  the  amount  of ($ )  dollars ;  and 

therefore  he  sues,  etc. 

1605  Scaffold  injury,  Narr.  (111.) 

For  that  whereas,  on  or  about  the day  of , 

19.  ,,  the  defendant  was  in  the  business  of  contracting,  and  on 
and  prior  to  the  date  afore-mentioned,  was   engaged  in  the 

construction  of  a  certain  elevator,  to  wit,  elevator 

of at  or  near street,  in  the  city  of 

,  county  of and  state  of  Illinois,  and 

was  then  and  there  particularly  engaged  in  the  placing  of  a 
certain  line  shaft  in  the  said  building  and  over  and  above  cer- 
tain bins  in  said  building  or  elevator,  at  a  point  a  great  distance 

from  the  ground,  to  wit,  about feet  from  the  ground, 

and  had  then  and  there  in  his  employ,  as  a  millwright  and  for 
other  certain  labor,  plaintiff's  intestate, ,  who 


PERSONAL  INJURIES  1047 

was  then  and  there  assisting  in  the  placing  of  the  said  line  shaft 
and  was  boring  holes  in  the  said  building  for  the  purpose  of 
furnishing  a  means  of  holding  the  said  line  shaft  in  place ;  and 
there  was  then  and  there  within  the  bins  and  at  the  top  thereof, 

and  about    feet  from  the  ground,   certain  scaffolds 

which  were  placed  within  the  said  bin  for  the  purpose  of  fur- 
nishing a  place  for  the  plaintiff's  intestate  and  others  to  work 
upon,  while  placing  the  said  line  shaft  into  position ;  and  the 
said  platforms,  as  aforesaid,  were  two  in  number  in  each  bin 
and  were  composed  of  two  stringers  or  beams  each,  and  upon 
the  said  beams  or  stringers  at  right  angles  to  the  same,  were 
placed  certain  planks,  for  the  purpose  of  furnishing  a  platform 
for  the  said  employees  aforesaid,  and  said  stringers  rested 
upon  certain  logs,  projecting  from  the  sides  of  the  said  bin, 
and  the  said  scaffolds  were  then  and  there  used  by  the  employ- 
ees of  the  said  defendant,  and  the  said  employees  were  directed 
to  work  thereon,  and  the  platform  was  a  place  to  work  fur- 
nished by  the  said  defendant  and  especially  to  the  said  plain- 
tiff"s  intestate;  and  plaintiff  alleges  that  it  was  then  and  there 
dark  upon  the  said  scaffold  by  reason  of  the  proximity  of  the 
said  scaffolds  to  the  roof  and  because  there  was  little  or  no 
means  of  throwing  light  upon  the  said  scaffolds,  so  that  it  was 
difficult  for  tliose  walking  upon  the  said  scaffolds  to  observe 
definitely  the  said  scaffolds. 

And  plaintiff'  avers  that  it  was  then  and  there  the  duty  of 

the  said  defendant,   ,  to  use  care  to  furnish  a 

reasonably  safe  place  for  plaintiff's  intestate  to  work  upon  and 
in,  and  to  use  care  to  furnish  a  reasonably  safe  scaffold  upon 
which  he  was  to  \vork ;  and  i)laintiff'  avers  that  it  was  then 
and  there  the  duty  of  the  said  defendant  to  inspect  the  said 
scaffold  before  ordering  the  said  plaintiff" 's  intestate  to  work 
thereon ;  but  that  the  defendant  wholly  and  utterly  failed  in 
its  duty  ip  this  regard,  and  failed  to  inspect  the  said  scaffold, 
which  was  then  and  there  defective  by  reason  of  certain  boards 
thereon  being  missing,  removed  and  absent,  so  that  there  was  a 
break  in  the  platform,  through  which  one  might  fall  to  the 
bottom  of  the  biu,-^''  which  said  break  or  hole  could  have  been 
observed  by  the  exercise  of  proper  inspection;  so  that  by  rea- 
son of  the  negligence  aforesaid,  the  plaintiff's  intestate  who 
was  then  and  there  ignorant  of  the  existence  of  said  hole,  and 
while  exercising  all  due  care  and  caution  for  his  own  safety, 
was  walking  over  and  upon  the  said  platform,  under  the  direc- 
tions of  said  defendant,  the ,  and  while  engrossed 

210  The  declaration  in  this  case  of  which  the  defendant  knew,  or 
contained  four  counts.  Counts  three  could  have  known,  in  the  exercise  of 
and  four  were  dismissed.  The  first  care  for  the  safety  of  plaintiff's  in- 
count  was  substantially  the  same  as  testate,  and  all  of  which  the  plain- 
the  second  except  that  it  did  not  tiff 's  intestate  was  ignorant. "  Dick- 
charge  the  duty  of  inspection  and  it  son  v.  Swift  Co.,  238  111.  62  (1909). 
alleged  after  the  word  * ' bin "  "all 


1048  ANNOTATED    FORMS   OF    PLEADING    AND    PRACTICE 

ill  his  work  and  while  rolying  upon  the  said  lUd'endant  having 
fuinislied  hiui  a  reasonably  safe  scalloKI,  he  came  to  and 
stepped  into  the  hole,  where  the  boards  had  been  removed  or 
Were  missing',  and  he  was  then  and  there  preeipitatrd  to  the 
bottom  of  the  said  bins,  by  reason  of  the  nef,dif,'«n.T  of  the  said 
defendant  aforesaid,  and  he  was  killed.  (Add  last  two  para- 
graphs of  Section  1495) 

b 

For  that  whereas,  heretofore,  on,  to  wit,  the day  of 

,  19.  .,  the  defendant,  in  the  city  of ., 

county  of and  state  of  Illinois,  was  en^iai^'ed  iu 

the  construction  of,  and  was  assisting  as  a  eontraetor  and 
otherwise  in  the  construction  of  a  certain  building,  to  wit,  a 
powerhouse  for  the  company,  and  was  employ- 
ing certain  servants  then  and  there  in  said  work,  and  had 
charge  of  and  ^-as  using  in  said  work  on  the  interior  of  said 
building,  certain  scaiTolding  made  of  planks  and  boards;  and 
whereas  tiie  plaintilV  was  tlieii  and  there  employed  (l)ut  not  by 
the  defendant),  in  and  about  a  certain  ash  hopper  therein,  which 
fact  was  then  and  there  well  known  to  the  defi-ndant  and  his 
said  servants,  or  might  have  been  known  to  them  by  the  exer- 
cise of  ordinary  care  on  their  part;  it  became  and  was  the 
duty  of  the  defendant  by  his  servants  in  that  behalf  then  and 
there  to  use  ordinary  and  reasonable  care  in  and  about  the 
work  of  the  defendant,  so  as  not  to  injure  the  plaint itT  and  so 
as  not  to  expose  him  to  unreasonable  danger;  yet,  the  defend- 
ant, not  regarding  his  duty  in  that  behalf,  by  his  said  serv- 
ants then  and  there  negligently  knocked,  pushed  and  pulled 
down  a  part  of  said  scatTolding  and  the  planks  and  boards 
thereof,  and  suffered  the  same  to  fall  with  great  force  down 
to  and  upon  a  certain  timber  then  and  there,  whereby  said 
timber  was  then  and  there  caused  to  fall  with  great  force  and 
violence  upon  and  against  Hie  plaintitf,  who  was  then  and 
there  and  at  all  times  herein  mentioned  in  the  exercise  of  due 
care  for  his  own  safety,  iutiicting  upon  him  the  injuries  here- 
inafter mentioned. 

2.  And  for  a  second  count  in  this  behalf,  the  plaintiff 
avers  that,  being  so  engaged  as  aforesaid,  it  also  became  and 
was  the  duty  of  the  defendant  by  his  servants  in  that  behalf 
then  and  there  in  removing  said  scaffolding,  planks  and  boards, 
as  aforesaid,  to  exercise  reasonable  care  to  prevent  the  same 
then  and  there  from  injuring  the  plaintiff  or  causing  injury  to 
the  plaintiff;  yet,  the  defendant,  not  regarding  his  duty  in  that 
behalf,  by  his  said  servants  negligently  failed  then  and  there 
to  have  and  use  in  the  removing  of  said  scaffolding,  planks  and 
boards  as  aforesaid  an  appliance  or  appliances  reasonably 
adapted  to  arrest  and  check  the  sudden  and  forcible  fall  of 
said  scaffolding,  planks  and  boards,  in  consequence  whereof 


PERSONAL   INJURIES 


1049 


the  same  then  and  there,  while  the  defendant  by  h  s  sa  d 
servants  was  removing  them  as  aforesaid,  fell  sudden  y  and 
with  great  force  upon  a  certain  heavy  timber  then  and  there 
and  caused  the  same  to  fall  suddenly  and  with  great  force 
then  and  there  upon  and  against  the  plaintiff,  who  was  then 
and  there  and  at  all  times  herein  mentioned  in  the  exercise 
of  ordinary  care  for  his  own  safety,  inflicting  upon  him  the 
injuries  hereinafter  mentioned. 

3  And  for  a  third  count  in  this  behalf,  the  plaintiff  avers 
that,  being  so  engaged  as  aforesaid,  it  also  became  and  was 
the  duty  of  the  defendant,  by  his  servants  in  that  behalf,  then 
and  there  to  warn  the  plaintiff  of  the  knocking,  pushing  and 
pulling  down,  and  the  causing  to  fall,  as  aforesaid,  ot  said 
scaffolding,  planks  and  boards. 

Plaintiff  avers  that  the  defendant,  however,  not  regarding 
his  duty  in  that  behalf,  by  his  said  servants  negligently  failed 
to  warn  the  plaintiff  then  and  there  as  aforesaid,  in  conse- 
quence whereof,  the  plaintiff,  who  was  then  and  there,  and  at 
all  times  herein  mentioned,  in  the  exercise  of  ordinary  care 
for  his  own  safety,  was  unable  to  get  out  of  the  way  ot  and 
escape  said  heavy  timber,  and  did  not  get  out  of  the  way  ot 
and  escape  the  same,  and  in  consequence  thereof  said  timber 
then  and  there  struck  with  great  force  against  the  plaintiff. 

And  the  plaintiff  avers  that  the  fall  of  said  timber,  as  afore- 
said crushed  and  shattered  his  right  hand  then  and  there,  so 
that'  a  part  of  the  same  had  to  be  amputated,  and  by  reason 
thereof  plaintiff  then  and  there  became  and  was  sick,  sore, 
lame  disordered  and  permanently  injured,  during  all  of  which 
time,  to  wit,  from  thence  hitherto,  he  thereby  suffered  great 

^^Plaintiff  avers  also  that  by  reason  of  his  said  injuries  he 
was  then  and  there  obliged  to  expend  and  become  liable  for 
divers  large  sums  of  money  in  endeavoring  to  be  cured  and 
healed  of  his  hurts  and  wounds  occasioned  as  aforesaid  ;  that  he 
has  been  hindered  from  attending  to  his  ordinary  affairs  and 
business  during  all  the  time  from  thence  hitherto,  and  has 
been  hindered  from  engaging  in  his  usual  occupation,  to  wit, 
that  of  a  boiler  maker's  helper;  that  he  has  thereby  been  pre- 
vented from  earning  divers  large  sums  of  money  as  wages,  to 
wit  $  .  .  per  day,  and  that  by  reason  of  said  injuries  he  will 
be  prevented  from  engaging  in  said  occupation  during  the  rest 
of  his  life.    Wherefore,  etc.^^o 

(Michigan) 

For  that  whereas,  for  a  long  time  prior  to  and  on  the  ....... . 

day  of  19- •,  said  plaintiff  had  been  employed  at 

his  trade  or  business  as  a  carpenter  and  builder  in  and  about 

220  0'Rourke    v.    Sproul,    241    111. 
57G    (1909). 


1050  ANNOTATEU    FUKMS   UF    I'LEADlNti    AND    I'lvACTICE 

the  said  city  of and  elsewhere,  and  had  at  that 

time  acquired  great  skill  and  prolieiency  thert-at,  whereby  lie 
was  able  to  earn  and  did  earn  goud  wages,  to  wit,  the  sum  of 
($ )  dollars  to ($ )  dol- 
lars per  day. 

On  the  said   ....    day  of   aforesaid,  at  or  about 

o'clock  in  the  afternoon  thereof,  said  plaintiff 

was  engaged  at  his  said  trade  or  business  erecting  and  tiuish- 

ing  a  certain  building  at  the corner  of 

avenue  and   street  in  tiie  said  city  of , 

where  said  plaintiff  was  working  upon  a  scafTold  on  the  out- 
side of  said  building,  about  ten  feet  from  the  ground,  duly 
and  lawfully  engaged  in  pursuit  of  his  said  trade  or  business, 
using  due  diligence,  care,  caution  and  priidence  in  and  about 
his  said  work  that  it  might  be  carried  on  with  safety  to  his 
person  with  regard  to  the  nature  of  said  work. 

Plaintiff"  further  avers  that  whilst  he  was  so  engaged,  working 
at  said  building  on  said  scatt'old,  aforesaid,  said  defendants,  who 
were  engaged  in  carrying  on  and  conducting  the  business  of 
painting  buildings,  among  other  things,  in  and  about  the  said 

city  of ,  were  by  their  agents  or  servants  engaged, 

on  the  said   ....   day  of   aforesaid,  in  painting  the 

said  building  aforesaid,  where  said  i)laintiir  was  engaged  at 
his  carpenter  work  as  aforesaid,  and  on  the  same  side  of 
said  building  where  said  plaintift'  was  working  as  aforesaid. 
Said  defendants,  their  agents  or  servants  so  engaged  in  paint- 
ing said  building  as  aforesaid,  were  using  a  long  heavy  ladder 
in  their  work,  which,  when  the  bottom  end  thereof  rested  upon 
the  ground  would  reach  up  upon  the  side  of  said  building  sev- 
eral feet  higher  than  plaintiff  was  when  he  was  upon  said 
scaffold  at  work  as  hereinbefore  stated.  Said  defendants,  their 
said  agents  or  servants,  used  said  ladder  in  and  about  their 
said  work  of  painting  said  building,  ascending  and  descend- 
ing upon  it,  moving  it  about  from  place  to  place  upon  said 
building  as  a  means  to  reach  their  said  work  of  painting  said 
building,  upon  the  day  and  hour  hereinbefore  mentioned 
aforesaid. 

And  plaintiff  further  avers  that  it  then  and  there  became 
and  was  the  duty  of  defendants,  their  agents  or  servants  and 
each  of  them,  to  use  ordinary  and  reasonable  care,  caution, 
diligence  and  prudence  in  and  about  the  premises  and  to 
handle,  fix,  place,  support,  use  and  control  said  ladder  in 
using  it  in  and  about  their  said  work  of  painting  the  said 
building  upon  which  said  defendants,  their  said  agents  or 
servants  and  said  plaintiff  were  at  work  at  one  and  the  same 
time  as  aforesaid,  so  that  said  ladder  would  not  fall  upon 
or  strike  said  plaintiff  and  thereby  do  him  injury  and 
damage. 

Yet,  the  defendants,  the  said and   

,  their  said  agents  or  servants,  and  each  of  them,  well 


PEBSOiNiAL   INJURIES  1051 

knowing  their  said  duties  in  the  premises  and  being  iu  default 
thereof,  and  wholly  neglecting  and  disregarding  said  duties, 

on  the  said day  of ,  19. .,  at  or  about 

o'clock  thereof  as  aforesaid,  did  handle,  fix,  place,  support, 
control  and  use  said  long  heavy  ladder  in  such  a  negligent, 
careless,  heedless,  and  reckless  manner  in  and  about  their  said 
work  of  painting  said  building  aforesaid,  where  said  plaintiff 
was  at  work  aforesaid,  as  to  cause  or  permit  said  long,  heavy 
ladder  to  fall  upon  said  plaintiff  while  he  was  lawfully  and 
with  due  regard  to  his  safety  at  work  upon  said  scaffold  at 
said  building  aforesaid,  said  ladder  striking  said  plaintiff  a 
very  severe  and  violent  blow  upon  his  head,  cutting  a  large, 
severe  and  painful  gash  on  his  head,  causing  him  to  become 
unconscious  so  that  he  fell  upon  said  scaffold,  said  ladder  then 
knocking  said  scaft'old  and  plaintiff'  violently  to  the  ground,  a 
distance  of  nine  or  ten  feet,  breaking  said  plaintiff"s  right 
collar  bone,  breaking  his  right  elbow,  and  causing  him  severe 
and  permanent  injuries  to  his  head  and  the  bones  thereof,  his 
scalp,  his  right  shoulder,  his  right  arm,  the  elbow  thereof  and 
permanent  injuries  to  the  bones,  muscles,  cords,  flesh,  tendons, 
ligaments  and  nerves  thereof.  Said  injuries  causing  plaintiff 
the  permanent  loss  of  the  ordinary  use  of  his  said  right 
shoulder,  right  elbow,  right  ai-m  and  the  hand  thereof.  Said 
injuries  then  and  there  cansing  said  plaintiff'  to  become  sick, 
sore,  lame,  woundt'd,  bruised  and  disordered  from  thence 
hitherto,  causing  him  much  severe  mental  and  physical  pain, 
anguish  and  suffering. 

AVhereof  and  whereby  said  plaintiff  has  been  and  now  is 
deprived  of  the  ordinary  use  of  his  said  right  hand,  arm  and 
shoulder  and  has  constantly  been  and  now  is  troubled  with 
severe  pains  in  his  head,  said  right  arm  and  shoulder,  and  is 
and  has  been  thereby  permanently  rendered  unfit  and  unable 
to  attend  to  his  said  business  and  the  ordinary  aff'airs  of  life. 
So  that  he  has  there  and  thereby  suffered  great  loss  in  his 

earnings  as  a  carpenter  at  a  salary  of ($.,..) 

dollars  per  day  to  the  amount,  to  wit,    

($ )  dollars.     And  whereof  and  whereby  said  plaintiff 

has  been  obliged  and  compelled  to  pay  out  and  expend  large 
and  divers  sums  of  money  in  procuring  for  himself  various 
drugs  and  medicines,  medical  and  other  attendance  in  order 
to  care  for  himself,  and  in  endeavoring  to  be  healed  and  cured 
of  his  said  injuries  hereinbefore  mentioned  and  the  ill  effects 

and  results  thereof  aforesaid  to  the  amount  of 

dollars  and  upwards.  To  plaintiff's  damage  in  the  sum  of  .... 
dollars,  and  therefore  he  brings  his  suit. 

1606  Scenic  railway,  action 

Persons  or  corporations  operating  a  scenic  railway  a.e  liable 
in  damages  for  the  failure  to  exercise  the  highest  degree  of  care 


1052  ANNOTATED   FORMS   OF    FLKADING    AND    PRACTICE 

and  caution  for  the  safety  of  their  passengers,  and  for  an 
omission  to  do  all  that  human  foresight  and  vigilance  can  rea- 
sonably do  consistent  with  the  mode  of  the  conveyance,  and 
the  practical  operation  of  such  railway,  to  prevent  accidents 
to  passengers  while  riding  on  the  cars,  the  same  as  common 
carriers.221 

1607  Scenic  railway,  Narr.  (111.) 

For  that  whereas,  the  defendants,  on,  to  wit,  the day  of 

,  19.  .,  were  corporations  duly  organized  and  engaged 

in  the  management  and  operation  of  a  certain  pleasure  resort 

or  place  of  amusement  known  as,  to  wit, ,  in  the 

township  of   ,  which  said  park  was  generally 

advertised  as  containing  interesting  attractions  including  con- 
veyance on,  to  wit,  a  scenic  railway,  which  consisted  of  small 
open  cars  discharged  at  an  elevation  on  a  narrow  gauge  rail- 
way the  surface  thereof  being  uneven  with  sharp  inclines  and 
short  turns  and  when  the  cars  were  released  on  said  railway 

they  would  encircle  the  track  at  the  rate  of,  to  wit,   

miles  per  hour,  of  their  own  momentum  acquired  at  the  start 
from  said  elevated  point  of  release,  and  the  subsequent  descend- 
ing grades  in  said  railway,  so  as  to  return  to  a  point,  to  wit, 
feet  from  the  starting  place,  of  their  own  motion. 

And  the  plaintift'  avers  that  it  then  and  there  became  and 
was  the  duty  of  the  defendants  to  exercise  reasonable  care 
and  diligence  in  the  construction,  maintenance  and  operation 
of  said  railway  and  cars  thereon,  and  also  to  inspect,  examine 
and  repair  their  said  railway  and  cars  at  frequent  intervals 
so  as  to  keep  them  in  reasonably  safe  condition  and  repair  for 
the  safe  conveyance  of  persons  patronizing  said  railway  and 
so  as  not  to  injure  persons  riding  on  said  cars  while  in  the 
exercise  of  reasonable  care  and  who  had  paid  the  fare  de- 
manded of  them  by  the  defendants;  yet,  the  defendants,  not- 
withstanding their  said  duties  on,  to  wit,  the  date  aforesaid, 
carelessly,  negligently  and  wrongfully  maintained  and  oper- 
ated said  railway  with  one  of  its  cars  in  an  improper  and 
unsafe  condition,  and  failed  and  neglected  to  inspect,  and 
examine,  repair  and  maintain  said  scenic  railway  and  cars 
thereon  in  a  reasonably  safe  condition  for  the  conveyance  of 
passengers;  but  the  defendants  permitted  and  allowed  said 
scenic  railway  and  the  cars  thereon  to  become  impaired, 
defective  and  unsafe,  of  which  defendants  in  the  exercise  of 
reasonable  care  could  have  had  notice ;  and  as  the  plaintiff,  on 
the  date  aforesaid,  was  riding  in  one  of  the  cars  of  the  defend- 
ants on  said  scenic  railway  and  was  in  the  exercise  of  reason- 

221  O  'Callaghan  v.  Dellwood  Park 
Co.,  242  111.  336,  3-i3   (1909). 


PERSONAL    INJURIES  1053 

able  care  and  had  paid  his  fare  therefor,  by  reason  of  the 
defendants  negligence  in  not  inspecting  and  repairing  said 
railway  and  cars  and  allowing  the  said  railway  and  the  cars 
to  become  defective  and  unsafe,  the  car  in  which  the  plaintiff 

was  then  and  there  riding  at  the  rate  of,  to  wit, miles 

per  hour,  without  notice,  warning  or  knowledge  on  the  part  of 
the  plaintiff,  then  and  there  suddenly  decreased  its  speed  and 
stopped  in  a  violent  manner  and  partially  tipped  forward, 
whereby  the  plaintiff  was  thrown  from  said  car  to  and  on 
the  hard  surface  of  the  ground  there,  a  distance  of,  to  wit, 

feet ;  and  the  plaintiff  was  then,  there  and  thereby 

seriously  and  permanently  injured  in  divers  parts  of  the  body 
including  his  head,  arras,  stomach  and  nervous  system,  which 
said  injuries  caused  the  plaintiff'  great  pain  and  distress  from 
that  time  hitherto,  and  he  still  suffers  therefrom,  and  the  plain- 
tiff lost  wages  amounting  to,  to  wit,    dollars  and 

incurred   expenses  amounting,   to  wit,    dollars  in 

endeavoring  to  be  healed  and  cured  of  said  injuries,  to  the 
damage,  etc. 

1608  Shafts  and  openings  unprotected,  action 

The  barrier  or  railing  required  to  be  erected  around  shafts 
and  openings  in  floors  of  buildings  in  process  of  construction  or 
repair  must  be  of  a  character  to  afford  substantial  protection  to 
men  who  are  engaged  in  work  in  such  buildings,  and  the  owner 
and  contractor  are  civilly  liable  for  injury  resulting  from  a 
failure  to  perform  this  duty.  The  statute  which  imposes  the 
foregoing  duty  is  constitutional. 222 

1609  Shafts  and  openings  unprotected,  Narr.  (111.) 

For  that  whereas,  heretofore,  on,  to  wit,  the   day 

of  ,  19.  .,  the  defendant,   ,,  was 

the  owner  of  a  certain  high  building  which  was  then  and  there 

in  the  course  of  construction  and  erection  on,  to  wit, 

street,  in  the  city  of   in  the  county  and  state 

aforesaid,  and  was  then  and  there  a  building  contractor  by 
occupation,  and  as  such  was  then  constructing  and  erecting  a 

part  of  said  building  for  said and  each  and 

both  of  said  defendants,  prior  to  and  then  and  there  had  charge 
of  the   construction   and   erection   of  said   building,   and   the 

,  deceased,  was  then  and  there  a  plumber  by 

trade,  and  as  such  was  then  and  there  employed  by  a  con- 
tractor, who  had  a  contract  with  the  said   

222  Claffv  V.  Chicago  Dock  &  Canal 
Co.,  249  ill.  210  (1911);  Sec.  7, 
Laws  1907,  p.  314. 


1054  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

for  the  doing  of  part  of  the  work  in  and  about  the  construc- 
tion and  erection  of  said  building,  and  the  deceased  as  such 
plumber  earned,  to  wit,   dollars  per  day. 

And  the  plaintiff  further  alleges  that  the  said 

was,  prior  to  and  then  and  there  using  within  said  building 
a  certain  elevator  or  hoist  for  the  purpose  of  lifting  materials 
to  be  used  in  the  construction  of  said  buildinix  from  the  ground 
to  the  upper  floors  of  said  building,  and  which  said  elevator  or 
hoist,  was  then  and  there  operated  up  and  down  through  a 

certain  shaft  or  opening  in,  to  wit,  the floor  of  said 

building.  And  by  reason  of  the  premises  and  of  the  statute 
in  such  case  made  and  provided,  it  was  prior  to  and  then  and 
there  the  duty  of  the  defendants  and  each  of  them,  to  cause 
said  shaft  or  opening  in  said  lloor  to  be  inclosed  or  fenced 
in  on  all  sides  by  a  substantial  barrier,  or  railing,  at  least 
eight  feet  in  height;  but  the  plaintift"  alleges  that  the  defend- 
ants, and  each  of  them  prior  to  and  at  the  time  and  place 
aforesaid,  wilfully  failed  to  cause  such  shaft,  or  opening,  in 
said  floor  to  be  inclosed,  or  fenced  in,  on  all  sides  by  a  sub- 
stantial barrier  or  railing  at  least  eight  feet  in  height,  or  by 
any  other  safe  and  suitable  barrier  or  railing,  but  therein 
wholly  failed,  and  made  default. 

And  the  plaintiff  further  alleges  that  at  the  time  afore- 
said, deceased  in  the  discharge  of  his  duty  to  his  said  employer 
was  working  upon  said  floor  upon  and  about  a  certain  pipe, 
which  was  alongside  of  and  close  to  said  shaft,  or  opening,  in 
said  floor,  and  the  erection  and  placing  of  which  pipe  at  the 
place  was  part  of  the  work  required  of  his  said  emi)loyer  by 

his  contract  wnth  the  said  And  the  plaintiff 

further  alleges,  that  while  the  deceased  was  so  working  upon 
said  floor,  and  upon  or  about  said  pipe,  as  a  direct  result  and 
in  consequence  of  the  defendants'  said  wilful  failure  to  cause 
said  shaft,  or  opening,  in  said  floor  to  be  inclosed,  or  fenced 
in,  on  all  sides  by  a  substantial  barrier  or  railing,  at  least 
eight  feet  in  height,  or  by  any  other  safe  and  suitable  barrier, 
or  railing,  he  thereby  then  and  there  accidentally  fell  into  and 
down  through  said  shaft,  or  opening,  a  great  distance,  to  wit, 
stories,  and  he  thereby  then  and  there  sustained  such 
bodily  injuries,  that  he  died  as  a  result  thereof  a  short  time 
afterwards,  in  the  county  and  state  aforesaid. 

And  the  plaintiff  further  alleges  that  the  deceased  then 
and  there  left  him  surviving  the  plaintiff',  who  alleges  she  was 

his  wife  and  is  his  widow,  and his  children,  and 

all  of  whom,  she  alleges  are  still  living,  and  that  she  and  they, 
before  and  at  the  time  of  deceased's  death,  were  dependent 
upon  deceased  for  their  support,  and  that  by  reason  of  the 
death  of  the  deceased,  she,  the  plaintiff,  and  his  said  children 
have  been  deprived  of  large  sums  of  money  and  pecuniary 
services  which  deceased  would  otherwise  have  contributed  and 
rendered  to  her  and  them  for  her  and  their  support,  care  and 


PERSONAL   INJURIES  1055 

Otherwise.  And  the  plaintiff  further  alleges  that  she  brings 
this  suit  for  the  benefit  of  herself  and  said  children.  To  the 
damage,  etc. 

SIDEWALK  INJURIES 

1610  Generally 

A  municipality  is  liable  for  an  injury  sustained  upon  a  side- 
walk which  it  had  permitted  to  become  unsafe.223  i^  Michigan 
the  liability  of  a  municipality  for  an  injury  sustained  by  a 
private  person  from  a  failure  to  repair  sidewalks,  highways, 
etc.,  is  purely  statutory  and  is  limited  to  bodily  injuries  and  to 
damages  to  certain  property  interests.  The  loss  of  a  safe's 
services  on  account  of  an  injur}'  sustained  upon  a  sidewalk  is 
not  considered  a  property  interest  within  the  meaning  of  the 
statute.224 

1611  Declaration  requisites 

In  charging  negligence  in  keeping  a  sidewalk  in  repair,  the 
location  of  the  sidewalk  is  an  essential  element  of  the  cause  of 
action. 22  •>  In  an  action  against  a  municipality  for  an  injury 
sustained  upon  a  sidewalk,  it  is  necessary  in  Michigan  to  ex- 
pressly allege  that  the  street  within  which  the  accident  happened 
was  open  to  public  travel  and  that  it  had  been  a  public  street 
or  highway  for  a  period  of  ten  years  and  upwards.  It  is  not 
necessary  to  expressly  refer  to  the  statute  upon  which  it  is 
founded,  provided  the  cause  is  so  stated  as  to  bring  the  defend- 
ant within  the  liability  created  by  the  statute ;  226  ^j^j  unless 
demurred  to,  the  declaration  which  fails  to  count  upon  the  stat- 
ute will  sustain  a  judgment. 22 7 

1612  Elevated  private  sidewalk,  Narr.  (El.) 

For  that  whereas,  before  and,  on,  to  wit,  the day 

of ,  19.  .,  the  defendant  was  the  owner  of  cer- 
tain premises  with  a  certain  building  thereon  located  in  the 

city  of    ,   county  of   aforesaid,   at, 

to  wit, ;  that  being  so  the  owner  of  the  said 

premises  the  defendant  prior  to  the  date  aforesaid  leased  the 

223  Chicago  V.  Jarvis,  226  111.  614.,  220  Clark   v.   Xorth   Muskegon,   88 
618   (1907).  Mich.  308   (1891). 

224  Roberts  v.  Detroit,   102   Mich.  227  Fuller   v.    Jackson    (City),    82 
64,  66  (1894).  Mich.  480,  482   (1890). 

22n  Gillmore    v.    Chicago,    224    111. 
490,  494  (1906). 


1056  ANNOTATED    FORMS   OF    PLEADING   AND    PRACTICE 

said  premises  for  the  purpose  of  being  used  as  a  residence, 
and  after  said  leasing  the  tenant  of  the  said  defendant  re- 
mained and  was  in  tlie  possession  of  the  said  premises  to  and 
on  the  date  aforesaid;  that  the  plaintiff  on  the  date  aforesaid 

was  a  minor  of  tender  years  and  lived  with   

parents  in  said  building;  that  at  the  time  of  the  leasing  of  said 
premises  and  building  by  the  defendant  there  was  in  front  of 
and  adjoining  said  premises  a  certain  public  viaduct  and  side- 
walk elevated  at  a  great  distance  above  the  ground,  to  wit, 

feet ;  that  at  and  before  the  date  aforesaid  the 

defendant  maintained  a  certain  private  sidewalk  extending 
from  said  public  sidewalk  to  the  said  building  for  the  purpose 
of  ingress  and  egress  of  the  said  tenant  and  people  living  in 
said  house  including  the  plaintiff  herein,  and  said  sidewalk  was 

elevated  above  the  ground  a  great  distance,  to  wit,   

feet;  that  it  then  and  tiiere  became  and  was  the  duty  of  the 
said  defendant  to  use  all  reasonable  care  to  cause  the  said 
private  sidewalk  to  be  so  constructed  and  so  maintained 
with  suitable  guards,  railings  and  protection  so  that  the  same 
would  be  reasonably  safe  for  the  people  who  have  lawful 
occasion  to  pass  over  said  private  walk.  Yet,  notwithstanding 
its  duty  in  that  behalf,  the  defendant  during  all  the  time  here- 
inbefore mentioned,  maintained  said  private  walk  in  a  danger- 
ous condition  in  that  it  was  elevated,  to  wit,   

feet  above  the  ground,  and  was  not  provided  with  reasonable 
guards,  railings  or  protection  to  prevent  children  and  others 
having  lawful  occasion  to  pass  over  it  from  falling  therefrom 

to  the  ground ;  that  on  the day  of , 

19..,  the  plaintiff,  while  in  the  exercise  of  such  reasonable 

care  as  might  be  expected  from  a  child  of years  and 

intelligence,  on  account  of  said  negligent  construction  and 
maintenance  of  said  private  sidewalk,  unavoidably  fell  from 
said  sidewalk  to  and  upon  the   ground  below,   and  thereby 

was  severely  injured  in  and  about  the  body  and 

limbs,  and leg  was  then  and  there  broken  by  said 

fall;  that  in  consequence  of  said  injury  h.  .  became  sick,  sore, 
lame  and  disordered  and  so  remained  from  thence  hitherto ; 
during  all  of  which  time  .  .h.  .  has  suffered  pain  and  inconveni- 
ence;  by  means  whereof  .  .h. .  says  .  .h.  .  has  been  damaged 

to  the  amount  of   dollars,  and  therefore   ..h.. 

brings  suit. 

1613  Hole  or  washout,  Narr.  (111.) 

For  that  whereas,  the  defendant,  a  municipal  corporation, 

in  the  county  of and  state  of  Illinois,  before 

and,  on,  to  wit,  the day  of >  19. .,  and 

for  a  long  time  prior  thereto,  was  possessed  of  and  had  con- 
trol of  a  certain  public  sidewalk  on  a  certain  public  street 
called ,  in  the  said  city  in  the  county  aforesaid, 


PERSONAL  INJURIES  1057 

and  it  was  the  duty  of  said  city,  during  the  time  aforesaid,  to 
have  kept  and  maintained  the  said  public  sidewalk  in  good  and 
safe  repair  and  condition.  Yet,  the  defendant,  not  regarding 
its  duty  in  that  behalf,  and  while  it  was  so  possessed  of  and 
had  control  of  said  sidewalk,  to  wit,  on  the  day  last  aforesaid, 
and  for  a  period  of  at  least  a  month  prior  thereto,  wrongfully 
and  negligently  suffered  and  permitted  a  portion  of  said  pub- 
lic sidewalk  located  on  the  west  side  of  said street, 

about feet  north  of  the  northwest  corner  of  the  in- 
tersection of and streets  in  the  said 

city  of ,  to  be  and  remain  in  bad  and  unsafe  con- 
dition and  repair,  and  at  the  place  aforesaid  wrongfully  and 
negligently  sull'ered  and  permitted  a  hole,  gutter  or  washout 
to  be  and  remain  in  said  sidewalk,  of  great  depth,  to  wit,  of 

about  the  length  of feet,  and  of  about  the  width  of 

feet,  thereby  making  said  sidewalk  unsafe  and 

dangerous  for  public  travel.  And  plaintiff  avers  that  the  said 
defendant  knew  the  condition  of  said  sidewalk  on  the  day 
aforesaid,  or,  by  the  exercise  of  reasonable  and  ordinary  care 
in  the  premises,  said  city  would  have  known  of  said  unsafe 
and  dangerous  condition  of  said  sidewalk  at  tne  place 
aforesaid. 

By  means  whereof,  the  plaintiff,  who  was  then  and  there 
passing  along  and  upon  said  public  sidewalk,  upon  the  west 

side  of  said street  aforesaid,  about feet 

north  of  the  northwest  corner  of  the  intersection  of 

and streets,  as  aforesaid,  and  who  was  then  and 

there  in  the  exercise  of  all  due  care  and  caution  for  her  own 
safety,  then  and  there  necessarily  and  unavoidably,  in  walk- 
ing along  and  upon  said  sidewalk,  stepped  into  said  hole,  gut- 
ter or  washout,  then  and  there  being  in  said  sidewalk,  all  as 
aforesaid,  and  thereby  one  of  the  lower  limbs  of  the  said  plain- 
tiff was  then  and  there  twisted,  turned  and  wrenched,  and  the 
ankle  of  said  limb,  and  its  component  parts,  severely  torn, 
broken,  misplaced,  fractured,  and  permanently  injured,  and 
the  plaintiff  was  otherwise  seriously  and  permanently  injured, 
and  she  became  sick,  sore,  lame  and  disordered  and  so  re- 
mained for  a  long  time,  to  wit,  from  thence  hitherto ;  during 
all  of  which  time  she  thereby  suffered  great  pain  and  was 
hindered  from  transacting  her  household  duties  and  other  busi- 
ness and  affairs,  and  her  injuries  in  the  respect  aforesaid  are 
permanent ;  and  also  by  means  of  the  premises,  the  plaintiff 
was  obliged  to,  and  did,  lay  out  divers  sums  of  money,  amount- 
ing to dollars,  in  and  about  endeavoring  to  be 

healed  of  the  said  wounds,  sickness  and  disorder. 

And  plaintiff  avers  further  that  after  the  time  of  the  hap- 
pening of  the  grievances  heretofore  herein  set  forth  and  de- 
scribed, and  on  the   and   days  of 

,  19.  .,  respectively,  the  said  plaintiff,  by  her  at- 
torneys,    ,  caused  to  be  filed,  and  did  file,  in  the 


1058  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

office  of  the  then  city  clerk  of  said  city  of ,  and 

the  then  city  attorney  of  the  said  city  of  re- 
spectively, a  certain  notice,  as  is  required  by  the  f?tatutes  of 
the  state  of  Illinois,  in  the  words  and  figures  following,  to  wit : 

State   of   Illinois,  Lg 
County   of \ 

To  the  city  of  county  of   ,  and 

state  of  Illinois,  and  to ,  city  attorney  of,  in  and 

for  said  city  of 

You  are  hereby  notified,  that  a  cause  of  action  has  accrued 

to ,  who  resides  at street,  with  her 

husband,     ,    by    reason    of    the    fact    that    said 

,  while  in  the  exercise  of  all  due  and  proper  care 

and  caution  for  her  own  safety,  did,  on  the day 

of ,  19.  .,  between  the  hours  of o'clock  and 

o'clock  ..    ]M.,  of  said  day,  and  after  dark,  step  into 

an  open  uncovered  and  dangerous  hole,  gutter,  or  washout  in 

and  within street,  in  said  city,  on  the  west  side 

of  said    street,  about    feet  north  of  the 

northwest  corner  of  the  intersection  of   and 

streets;  said  hole,  gutter  or  washout  being  in 

the  cinder  and  dirt  foot  passageway  or  sidewalk  on  the  said 

west  side  of  said street ;  Avhicli  said  hole,  gutter 

or  washout  had  existed  at  said  place  for  a  considerable  length 

of  time,  to  wit, month.  .,  and  thereby  by  the  said 

stepping  into  said  hole,  gutter  or  washout  said   

did  then  and  there  turn,  twist,  wrench  and  injure  her 

foot  and  the  ankle  and  lower  limb  on side  of  her  body, 

so  that  she  has  been  very  severely  and  permanently  injured 
by'  reason  thereof ;  that  her  attending  physician  was,  at  the 

time  of  the  accident,  and  still  is, ,  who  resides  at 

the  corner  of   and  streets,  in  the 

city  of aforesaid. 


By , 

her  attorneys. 

And  the  plaintitf  further  avers  that  the  said  city  clerk  of 

the  city  of ,  and  the  then  city  attorney  of  said 

city  each  separately  acknowledged  the  receipt  of  said  notice, 
and  receipted  therefor  on  an  original  copy  of  the  same,  on 

the  said and days  of , 

19. .,  respectively,  which  said  original  copy,  together  with  said 
proof  of  service  of  said  notice,  as  is  required  by  statutes,  was, 

on  the day  of ,  19.  .,  filed  in  the  office  of  the 

clerk  of  this  court,  and  is  now  a  part  of  the  files  of  this  cause. 
To  the  damage,  etc. 


PERSONAL  INJURIES  1059 

1614  Loose  plank,  Narr.  (111.) 

For  that  whereas,  heretofore,  on,  to  wit, ,  at, 

to  wit, ,  and  said  county  and  state,  the  defendant 

was  possessed,  and  had  control  of  a  certain  public  sidewalk, 

on,  to  wit,    ,  near,  to  wit,   ,  in  said 

city ;  and  the  defendant  carelessly  and  negligently,  and  in  vio- 
lation of  its  duty  in  the  premises,  then  and  there,  and  for  a 
long  time  previous  thereto,  had  and  kept  said  sidewalk  out  of 
reasonable  repair  and  condition  and  full  of  divers  holes  and 
weak  and  insecure,  and  insufficient,  so  that,  while  the  plaintiff 
was  then  and  there,  to  wit,  in  the  night  time,  with  all  due 
care  on  her  part,  lawfully  passing  upon  and  over  said  sidewalk, 
a  certain,  to  wit,  board,  to  wit,  plank  constituting  a  part  of 
said  sidewalk  then  and  there,  by  reason  of  the  premises,  flew^ 
up  and  gave  way  and  tripped  the  plaintiff  and  she  thereby, 
without  fault  on  her  part,  fell  into  a  certain  hole  then  and 
there  in  said  sidewalk,  and  a  certain  board  in  said  sidewalk 
then  and  there  broke,  and  by  reason  of  the  premises,  the  plain- 
tiff then  and  there  fell  upon  and  against  said  sidewalk,  to  wit, 
through  said  sidewalk,  to  wit,  to  the  ground  then  and  there; 
whereby  the  plaintiff  was  greatly  and  permanently  injured, 
both  internally  and  externally,  and  was  rendered  permanently 
sick,  sore,  lame,  crippled  and  disordered;  and  also,  by  reason 
of  the  premises,  the  plaintiff  suffered  severe  and  permanent 
concussions  of  the  brain  and  spine  and  a  severe  nervous  shock, 
and  was  rendered  permanently  subject  to  headaches,  vertigo, 
sleeplessness  and  melancholia,  and  divers  other  troubles  of  the 
head;  and  divers  of  the  bones  of  the  plaintiff's  chest  and  other 
parts  of  her  body  and  of  her  limbs  were  thereby  broken  and 
dislocated  and  greatly  and  permanently  bent,  strained  and 
otherwise  injured ;  and  also  by  reason  of  the  premises,  divers 
of  the  nerves,  sinews  and  muscles  of  the  plaintiff  were  greatly 
and  permanently  strained,  sprained,  ruptured  and  injured ;  and 
other  parts  of  her  body  were  greatly  strained,  sprained,  rup- 
tured, and  injured ;  and  the  plaintiff  was  rendered  permanently 
subject  to  spitting  of  blood,  nausea  and  vomiting,  and  was 
confined  to  her  bed  for  a  long  time,  to  wit,  from  thence  hitherto  ; 
and  also  by  reason  of  the  premises,  the  viscera  and  internal 
organs  of  the  plaintiff  and  her  heart  and  lungs  were  greatly 
and  permanently  strained,  sprained,  ruptured  and  injured ;  and 
her  bladder  and  womb  were  greatly  and  permanently  injured 
and  rendered  incapable  of  performing  their  normal  functions 
properly,  and  she  suffered  from  bleeding  from  her  private  parts 
and  was  rendered  incapable   of  child  bearing;  and  also  by 
reason  of  the  premises,  the  plaintiff  has  been  rendered  unable 
to  work,  or  to  follow  her  usual  occupation  of  housewife,  or  to 
perform  her  usual  duties;  and  was  put  to  a  great  expense,  to 
wit,  an  expense  of  ($ )   dollars  for  medi- 
cines, nursing  and  medical  attendance,  in  endeavoring  to  be 


1060  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

cured  of  aforesaid  injuries,  and  will  be  obliged  to  incur  like 
expenditures  pernianeutly  in  future  for  the  same  purpose;  and 
also  by  reason  of  the  premises,  the  plaintiff  has  been  and  is 
otherwise  greatly  and  permanently  injured,  to  wit,  at  said 
county  •  wherefore,  she  says  she  is  injured  and  has  sustained 

damages  in  the  sum  of   ($......)   dollars,  and 

therefore  she  brings  this  suit,  etc.-28  (Add  averments  con- 
cernhig  notice  as  in  preceding  form) 

1615  Obstructed  sidewalk,  Narr.  (D.  C.) 

For  that  whereas,  on  the  day  hereinafter  mentioned,  and 
for  a  long  time  prior  thereto,  there  was  and  still  is  a  certain 

common  public  street  or  highway  in  the  city  of , 

in  the  District  of  Columbia,  called avenue,  south, 

a  certain  other  common  and  public  street  or  highway  in  said 
city  and  District  called street,  south,  and  a  cer- 
tain other  common  and  public  street  and  highway  in  said  city 

and  District  calleil street,  west,  which  said 

avenue  intersects  with  said  street 

and  with  said street,  and  which  said 

avenue, and  streets,  were  and  are 

used  as  such  streets  and  liighways  by  the  public  for  passing 
and  repassing  on,  over  and  across  the  same,  on  foot  as  Avell 
as  otherwise;  and  whereas  said  defendant,  well  knowing  the 
premises,  was  bound  to  keep  said  street  and  highways,  and 
each  of  them  in  such  condition  as  to  render  them  safe  for  pass- 
age and  transit  as  aforesaid  on,  over  and  across  the  same; 
yet,  nevertheless,  the  plaintiff  alleges  that  theretofore,  to  wit, 

on  the day  of ,  the  said  defendant, 

not  performing  or  regarding  its  duty  as  aforesaid,  wrongfully 
and  negligently  caused,  permitted  and  allowed  the  said  com- 
mon and  public  streets  and  highways,  to  wit,  at  the  southeast 
corner  of  their  said  intersection  with  each  other,  to  become 
and  remain  in  a  dangerous  and  unsafe  condition,  to  wit,  by 
causing  or  permitting  an  obstruction,  to  wit,  a  large  pipe,  or 

hose  of  great  diameter,  to  wit,  of  a  diameter  of   

inches,  to  be  placed  and  to  lie  and  be  upon,  across  and  over, 
and  to  project  from  and  above  the  sidewalk  or  sidewalks  of 
the  said  avenue  and  streets  at  or  near  the  said  southeast  corner 
thereof  formed  by  their  said  intersection,  and  especially  upon, 

across,  over  and  from  and  above  the  sidewalk  of 

street,  at  or  near  the  said  locality,  there  to  remain,  be  and 
continue  for  a  long,  unnecessary  and  unreasonable  length  of 
time,  when  not  in  use,  unattended  and  without  any  barricade, 
precaution,  Avarning.  or  notice  of  any  kind  for  the  protection 
of  persons  lawfully  passing  along,  upon  and  over  the  said  walks, 

228  Karczenska  v.  Chicago,  239  HI. 
483  (1909). 


PERSONAL  INJURIES 


1061 


or  to  prevent  the   said  obstnietion  from  causing  injury  to 
them  •  by  means  and  in  consequence  of  which  gross  negligence 
and  failure  on  the  part  of  the  defendant  to  perform  its  duty  m 
that  respect  as  aforesaid,  the  plaintiff  then  and  there   to  wit 
on  the  day  and  year  aforesaid,  while  walking  moderately  and 
carefully  along  the  said  street,  was  tripped  by  and  caused 
to  stumble   over  the  said   obstruction,   which  was  then   and 
there  and  for  a  long  time  had  been  so  as  aforesaid  unlawtully 
and  wrongfuimy  caused,  permitted  and  allowed  to  be  m  and 
upon  the  sidewalk  of  the  said  streets  and  avenue,  unguarded 
and  unprotected  in  any  manner  whatsoever,  through  the  gross 
ne-ligence  and  default  of  the  defendant  as  aforesaid ;  whereby 
the  plaintiff  was  then  and  there  thrown  heavily  down  to  and 
upon  the  ground,  and  whereby  the  plaintiff's  arms  became 
greatly  bruised,  hurt,  wounded  and  injured  and  the  elbow-jomt 
of  her  said  arm  was  fractured,  sprained  and  bruised  and  other- 
wise seriously  hurt,  cut  and  maimed,  causing  permanent  and 
extensive  oedema  and  stiffness  of  the  joint  and  serious  and 
permanent  impairment  of  the  function  of  the  arm,  and  whereby 
{he  plaintiff  suffered  great  pain  and  mental  and  bodily  anguish ; 
and  so  by  means  of  said  injury,  the  plaintiff  was  rendered  sick, 
sore  lame  and  disordered ;  and  from  thence  hitherto  continued 
and' will  ever  continue  to  suft'er  great  pam  and  mental  and 
bodily   suffering;   and  was  for  a  long  space  of  time    from 
thence  to  the  present  time,  and  will  ever  continue  to  be  hin- 
dered and  prevented  from  attending  to  and  performing  her 
ordinary  and  necessary  affairs  and  duties;  and  she  is  seriously 
and  permanentlv  injured  in  her  bodily  health  and  strength; 
and  in  attempting  to  cure  herself  of  her  said  injuries  as  afore- 
Lid  "he  was'piU  to  great  expense,  and  froin  thence  hitherto 
has  been  and  will  always  be  put  to  great  expense  for  the 
services  of  phvsicians  to  treat  her  said  injuries  and  for  medi- 
cine in  the  treatment  of  much  injuries;  to  the  damage,  etc. 

(Maryland) 

For   that   the    defendant    the   mayor   and  ^^.^^7    council    o^ 

aforesaid  is  a  municipal  corporation  of  the  state 

TTvVoVJianH    Pbnr^ed  bv  the  law  with  the  duty  of  caring  tor 

fndSa^^^^^  alleys  and  sidewalks  of  the  city 

and  mainra       g    ^^^  ^^  ^^^^.^^  ^^^  ^^^^^  ^^  ^^^  ^f\^f 

i^i;V  i^nvpf  '-Ind  charc^ed  with  the  duty  to  remove  and  abate 
Tl  i^isan  e  'and  ob^^^^^^^^  on  said  streets,  alleys  and  side- 

li  nvmf  OT  from  any  lot  within  the  limits  of  the  city;  and 
utas  a    the    ime  of  the  injuries  hereinafter  mentioned  and 

fs  n^  f  %^--rA  aTe^atd  r^- 

ir^^f  tlTcityf^ut  disregarding  and  neglecting  said 


1062  ANNOTATED    FORMS   UK    I'LEADING    AND    PRACTICE 

duty  and  obligation  imposed  upon  it   tlu*  saiil  defendant  tlw 

mayor  and  city  council  of did  on  the  ....   day 

of   ,  19..,  and  for  a  long  time  prior  thereto  permit 

the  said    ,    ii"^    ^"-'^l^ 

conducted  a  hotel  known  as hotel  on  the  north- 
west corner  of   and    streets  in  the 

said  city  of ,  it  being  the  same  property  described 

in  a  deed  from   to  the  said   dated 

the day  of , ,  and  recorded  among  the  land 

records  of county  in  liber No , 

folio    .  . .  .,  to  stack  beer  kegs  on  or  near  said 

street  one   of  the   public   traveled  streets  of  said   city  at   or 

near  its  intersection  with    street  and  near  said 

hotel  in  such  a  negligent  manner  as  to  be  dangrrous  to  per- 
sons passing  along  and  upon  said  street,  and  failed  and  neg- 
lected to  remove  the  same  and  failed  and  neglected  to  require 
the  said  ,  and  to  re- 
move the  said  beer  kegs  so  negligently  stacked  by  them  on 

or  near  the  sride  of  said  street;  that   on  the    day  of 

,  19..,  the  date  above  mentioned  a  number  of  beer 

kegs  were  negligently  stacked  on  or  near  said   

street  at  or  near  its  intersection  with street  and 

near    the    hotel    so    conducted    by    the    said   ..., 

and   to  the  height  of  about  eight 

feet  by  the  said , and 

or  their  agents  and  servants;  and  that  on  the  said  day  and 
date,  while   the  said  infant   plaintiff  was  passing  along  and 

upon  the  sidewalk  on  said street  at  and  near  its 

intersection  with   s-trect  where  the  i)ubHe  using 

said  street  travel  at  all  times,  and  using  due  care  for  her  own 
safety,  by  reason  of  the  negligent  and  dangerous  manner  in 
which  they  had  been  piled,  one  of  said  beer  kegs  fell  upon  said 
infant  plaintiff  knocking  her  down  and  injuring  her  left  leg 
so  seriously  that  as  a  result  of  said  injury  the  said  left  leg 
of  said  infant  plaintiff"  had  to  be  amputated  below  the  knee; 
and  other  injuries  were  inflicted  upon  her;  and  as  a  result 
of  which  said  injuries,  said  infant  plaintiff  has  suffered  great 
pain,  and  is  permanently  injured;  and  that  the  said  infant 
plaintiff  was  using  due  care  and  caution  and  was  not  guilty 
of  negligence  contributing  directly  to  the  happening  of  said 
accident. 

And  therefore  the  plaintiff  claims  $  damages. 


1616  Stairway  and  passageway,  action 

A  landlord  who  rents  different  parts  of  a  building  to  various 
tenants  and  retains  control  of  the  stair\vays,  passageways,  hall- 
ways, or  other  methods  of  approach  to  the  several  portions  of 


PERSONxVL  INJURIES 


1063 


the  building  for  the  common  use  of  the  tenants  has  resting  upon 
him  ?n  implied  duty  to  use  reasonable  care  to  keep  these  places 
in  a  reasonably  safe  condition  and  is  liable  for  injuries  which 
result  to  persons  lawfully  in  the  building  from  a  failure  to 
perform  this  duty. 229 

1617  Stairway  and  passageway,  Narr.  (D.  C.) 

For  that  heretofore,  to  wit,  on  the   day  of   ••••••••' 

at  the  city  of  ........  District  of  Columbia,  the  defend- 

ant was  the  lessee  and  in  control  and  possession  of  certain 
premises  situate  in  the  said  city  and  District,  ^^^^^'JJ\^ 
^  theatre,  upon  which  premises  the  said  defend- 

ant* then    and    there  conducted    a    public    entertainment    or 
theatre  and  charged  prices  of  admission  to  all  Persons  enter- 
ing the  said  premises  for  the  purpose  of  witnessing  the  sa  d 
entertainment.     That   the   said   defendant   produced   on  said 
prem  i>s     afternoon     and     evening     theatrical     performances 
known  as  polite  vaudeville  entertainments  for  which  entrance 
fees  were  by  him  charged  to  and  required  of  persons  desir- 
ing to  witness  the  said  performances.     That  the  said  plaintiff 
on  the  afternoon  of  the  day  and  year  above  mentioned,  desir- 
ing to  witness  the  said  performance  tor  that  afternoon  had 
purchased  for  her  of  the  defendant  a  ticket  entitling  her  to 
admission  on  that  afternoon  to  the  said  Pf'?^^«^^  f  J*,^^?^^^ 
seat  in  a  lower  box  on  the  right  hand  side  of  the  said  theatre. 
That  the  said  plaintiff  was  at  the  time  ^fo;^^^^^,^;^.^^  f  \^,^"^^ 
by  the  defendant  upon  presentation  of  the  said  ticket  to  the 
said  theatre  and  box.     That  it  then  and  there  became  and 
was  the  dutv  of  the  said  defendant  to  so  construct  and  main- 
tain the  said  premises  and  especially  the  aisles  and  passage- 
ways of  the  siid  theatre  that  they  would  be  in  a  reasonably 
safe  and  proper  condition  for  persons  properly  on  said  prem- 
Les  and  des  ring  to  enter  and  leave  the  said  premises  and 
the  aforesaid  box  during  the  said  entertainment  and  at  the 
conclusion    thereof.      And    also    to    keep    the    same   properly 
lighted  until  such  persons  had  a  reasonable  opportunity  to 
leave  the   said  box  and  premises  at  the  conclusion   of   said 
entertainment.    But  the  plaintiff  avers  that  on  the  occasion  m 
quest  on  the  defendant  unmindful  of  his  duty  in  the  premises 
ne^   gentlv  suft'ered  and  permitted  the  said  right  hand  side 
aisle  of  said  theatre  leading  from  and  beyond  the  entrance  to 
said  box,  a  seat  in  which  the  plaintiff  occupied,  to  the  exit 
f?om  said  theatre,  to  be  in  a  dangerous  and  unsafe  condition 
in  this-     That  the  usual  and  necessary  entrance  to  said  box 
was  by  a  passageway  leading  thereto  from  the  right  hand  aisle 
Jf  the  ground  floor  of  said  theatre;  that  the  said  passageway 

220  Shoninfrer  Co.  v.  Mann,  219  111. 
242,  245   (1906). 


1064  AXNOTATED   FORMS   OF    PLEADING   AND   PRACTICE 

was  separated  from  said  aisle  by  a  curtain  huug  at  the 
entrance  to  said  passageway  from  said  aisle,  which  could  be 
drawn  aside  at  either  end  so  as  to  allow  persons  access  to  said 
passageway  from  said  aisle  and  to  said  aisle  from  saitl  passage- 
way;  that  there  was  then  and  there  a  descending  step  in  said 
aisle  which  extended  entirely  across  said  aisle  of  the  height 

of,  to  wit inches,  and  that  the  said  step  was  eon- 

structed  across  the  said  aisle  just  beyond  the  point  of  exit 
on    said    aisle    from    said    passageway    from    said    box    and 

at   a   short    distance,   to   wit,    •  inches,    from    said 

point  of  exit,  and  extended  as  aforesaid  across  aforesaid 
aisle;  that  the  existence  and  location  of  the  said  step  at  the 
place  aforesaid  in  said  aisle  constituted  and  was  a  danger- 
ous construction  and  a  trap  both  in  its  construction,  itself 
and  also  in  this;  that  unless  the  premises  aforesaid  at  the 
location  of  the  said  step  were  clearly  lighted,  a  person  pass- 
ing along  the  said  aisle  and  turning  to  enter  the  said  passage- 
way and  passing  along  said  pas*sageway  and  turning  to  enter 
the  said  aisle  could  not  see  the  said  step:  that  said  premises 
were  so  constructed  and  maintained  that  daylight  was  excluded 
therefrom  and  the  same  were  lighted  with  artiticial  lights 
which  could  be  and  were  by  servants  of  the  defendant  turned 
on  and  off,  lowered  or  heightened  by  mechanical  appliances 
as  occasion  should  require. 

And  the  plaintiff  avers  that  on  the  occasion  in  question  the 
defendant  unmindful  of  his  duty  in  the  premises,  negligently 
suffered  and  permitted  the  right  aisle  of  said  theatre  leading 
from  and  beyond  the  said  box,  a  seat  in  which  the  plaintiff 
occupied,  to  the  exit  from  said  theatre,  to  be  in  a  dangerous 
and  unsafe  condition  in  that  there  was  then  and  there  in 
said  aisle  the  aforesaid  step  and  also  in  that  the  said  defendant 
after  the  close  of  the  said  performance  and  before  the  plaintiff 
had  reasonable  time  to  leave  the  said  theatre  negligently 
suffered  and  permitted  the  above  mentioned  artificial  lights 
which  were  necessary  to  a  reasonable  and  proper  lighting  of 
the  said  premises  to  be  turned  down  and  extinguished  and 
thereby  caused  the  said  premises  to  be  and  remain  in  a  dark 
and  improperly  lighted  condition ;  and  that  the  said  defendant 
further  negligently  permitted  the  said  curtain  to  remain  over 
the  entrance  to  said  passageway  from  said  aisle. 

By  reason  whereof  the  said  plaintiff  while  using  due 
care  and  caution  on  her  part,  in  leaving  the  said  box  and 
going  along  the  passageway  on  the  said  occasion  in  order 
to  depart  from  the  said  theatre  could  not  and  did  not 
see  the  said  step  immediately  and  after  leaving  the  said 
passageway  and  was  precipitated  and  thrown  violently  down 
the  said  step  extending  across  the  said  aisle,  to  the  floor  of 
said  theatre,  while  drawing  the  said  curtain  aside  in  order 
to  allow  a  companion  free  access  to  said  aisle  from  said 
passageway,    and    her    body    was    much    cut,    bruised    and 


PERSONAL   INJURIES  l^Go 


«H11  is  sick  sore,  and  lame,  aud  has  endured  and  will  con- 
W  to  endure  great  pain  and  bodily  anguish;  and  has  been 
Ind  wm  continu!  to  b'e,  by  reason  of  said  -^unes  hmdered 
and  prevented  from  performing  and  transacting  her  neces 
sarv  affairs  and  business;  and  further  the  said  plaintiff  was 
forced  and  obliged  to  pav  out  a  large  sum  of  monej ,  to  wit 

the  «um  of  .  dollars  in  and  about  endeavoring  to 

be  cur^d  of- Vhe  injuries  aforesaid,   and  in  the  expenses  of 
med'dne  rendered  Necessary  by  reason  thereof,  and  w^ll  m 

future  be  obliged  to  pay  out  large  sums  of money 

for  the  same  purposes;  to  the  damage,  etc. 

(Michi^n) 

That  he  is  and  has  been  for  many  years  continuously,  both 
mat  ne  IS  dnu  professional  musician,  pro- 

fit  :nt  o^  the  horn; -flui;;  ''oUn  a'nd  especially  a  first  class 
art  with  the  viola,  and  had  been  --^--^^^^^;/;^^/:^,^,'^^ 
practice  of  his  profession,  as  a  teacher,  and  pl^^mg  ^th  and 
leading  bands  and  orchestras,  at  a  very  high  pa>  and  was  able 
to  and   did  earn  thereby  from  $ to  $ per 


annum.  is  a  private  corpora- 

That  the  defendant, :  ;;;'Ap  i.^vs  -^  Mir.hicran. 

ized  and  doing  business  under  the  la^^s 
,  ,•  1  -    4u^  and  occupies  anc 

r^^^r/in'L  sion;  VronVbuiliBg  kBOwn^s  the 


"{^^  _  .    ,  and  occupies  and  conducts 

nt  building  known  as  the 

j(je  of boulevard. 


building  on  the  south  side  ot ;  ■  •  j^-  •  -"      ^j  ^^^  ^^.^^ 

That  the  defendant  •  >^">«  ^^,^  ^j  ^^^ 

rrL''nrb:^*'^•  •.•.•;.■  »  s^'  ..;... ... . .  »ou.eva.d, 

t^X  tit?  «JaV>ea"s  eliS  b  th  be^.e  and 
;\;ee  said  date  operated  and  conducted  a  var.ety  theater.  ^^^ 
That  on  or  a WU  -^  ^-^  .  .^^^  .^da.  ^^^  ^^^.^^  ,;^.^     -^ 

: •■■*'  f  hnlletins    to  announce  the  results  ot  public 

"4e's  rnT:,h  r'nlL'^Stin^vents  and  had  been  as  well  giv- 

-wTreo-rr^^---:/^^^^^^^^^^^ 

whereby  and  thereunder  the  defendant agreed 


1066  ANNOTATED   FORMS  OP   PLE-A.DINQ   AND   PRACTICE 

to  let  it  have  the  use  of  a  balcony  extending  out  and  over  the 
sidewalk  in  front  of  and  immediately  contiguous  to  the  north 

side   of  said   theater   building   of  said    ,   located 

next  door  west  of  said ,  in  order  to  seat  for  said 

said   musicians  and   for  them   to   provide   said 

concert  therefrom. 

That  it  became  and  was  therefore  the  duty  of  said  defend- 
ant   and  of  said  dctViulant  and  of 

each  of  them,  to  provide  for  said  musicians,  including  plain- 
tiff, a  place  safe,  convenient  and  comfortable  for  them  to 
play  at  and  upon,  and  to  furnish  said  musicians  there  also 
a  safe  place  and  means,  with  convenient  doors,  entrances  and 
stairways  with  sufticient  railings  thereon,  and  hallways,  all 
well  lighted  or  attended,  botli  to  get  into  ami  tln-ough  said 
theater  to  said  platform,  as  well  as  to  get  away  therefrom 
and  out  of  said  theater;  and  that  said  defendants,  and  each 
of  them,  in  so  providing  said  balcony  and  inviting  and  per- 
mitting said  musicians  thereto  and  thereupon,  held  out  and 
represented  to  phiintiff  and  said  others  that  said  doors, 
entrances,  stairways,  hallways,  etc.,  leading  into  and  out  of 
said  building  were  so  as  set  forth  sound  and  safe  for  ingress 
and  egress. 

That  in  accordance  with  said  understanding  between  plain- 
tiff' and  said and  said and  each  of 

them,  and  the  holding  out  and  olTering  of  and  the  said  repre- 
sentations by  said  defendants and 

in  relation  to  said  premises,  plaintiff  and  said  musicians  about 
....  o'clock  in  the  evening  of  said  day  went  uj)  the  stairway 

of  said    theater   building,    anti    thereupon    went 

back  through  the  room  adjacent  to  and  out  upon  said  balcony, 
and  gave  said  concert;  that  about  ....  o'clock  of  said  even- 
ing, after  they  had  concluded  the  concert,  they  crawled  back 
through  one  of  the  windows  into  said  theater  building,  went 
back  through  the  room  adjacent  to  the  balcony  and  into  which 
the  windows  opened,  and  the  greater  i)art  of  tiiem  went  out 
ahead  through  the  doorway  thereof  and  found  their  way 
through  the  hallway,  onto  the  stairs  and  went  down  into  the 
street;  that  plaintiff  remained  behind,  the  only  musician  left 
in  said  room,  put  his  P>ench  horn  into  the  bag  which  he  had 
therefor,  after  which  he  took  the  French  horn  under  his  right 
arm,  and  his  music  stand  in  his  left  hand  and  went  out  through 
the  doorway,  and  upon  reaching  the  hallway  found  it  unlighted 
and  dark ;  that  he  carefully  felt  his  way  from  the  wall  up  the 
short  stairs  that  are  at  the  left  of  the  doorway  going  out,  and 
passed  across  the  hallway,  carefully  feeling  his  way  to  the 
approach  erected  at  the  head  of  the  stairway  leading  down 
and  out  of  said  theater  building ;  that  he  had  never  before  been 
in  the  building  or  on  the  stairway,  except  while  coming  up 
that  evening,  when  it  was  already  past  dusk  and  dark;  that 
while  coming  up  said  parties  noticed  that  the  stairway  and 


PERSONAL  INJURIES  1067 

hallwaj^  were  unlighted;  that  they  were  talking  to  each  other 
and  plaintiff  paid  no  particnlar  attention  while  coming  up 
to  either  the  length,  position  or  condition  of  the  stairway  or 
of  the  hallway;  that  therefore  he  was  unacquainted  with  his 
surroundings  and  used  extreme  care  in  endeavoring  to  go  out, 
walking  carefully  across  said  hallway  to  the  eas-t  wall,  felt  his 
way  along  this  right  side  and  started  carefully  to  descend 
said  stairs;  that  after  he  had  descended  only  tvro  or  three 
stairs,  being  unable  to  steady  himself  with  his  right  hand,  and 
finding  no  railing  on  that  side,  he  turned  partly  around  and 
started  to  cross  over  to  the  left  side  of  said  stairs,  to  ascertain 
if  there  were  on  that  side  a  railing  on  which  he  might  steady 
himself  with  his  left  hand,  which  was  partly  disengaged;  that 
when  (as  he  believes)  plaintiff  was  about  half  way  across  the 
stairs,  he  became  bewildered  on  account  of  the  darkness,  lost 
his  bearings  and  sense  of  direction,  slipped  over  the  stair  on 
which  he  walked  and  pitched  down  the  stairway,  fell  on  his 
left  arm,  side  and  head,  broke  his  arm  at  the  elbow,  was 
knocked  unconscious,  and  has  no  recollection  of  what  further 
transpired  until  he  returned  to  consciousness  on  the  sidewalk 
in  front  of  said  theater,  where  he  is  informed  that  he  had 
been  carried  b}'  some  one  who  found  him  unconscious  after 
the  fall ;  and  plaintiff  is  informed  that  two  or  three  of  the 
other  musicians  who  went  on  ahead  of  him  stumbled  on  said 
stairs  in  going  down,  and  that  one  of  them  pitched  forward 
and  down  said  stair  and  would  have  fallen  and  received  a 
violent  injury  had  he  not  been  caught  by  the  music  director 
who  was  ahead  of  him. 

And  plaintiff  alleges  that  by  and  through  said  accident  his 
arm  was  severely  fractured  and  splintered  at  the  elbow  and 
he  received  concussion  of  the  brain  and  suffered  great  loss  of 
blood;  his  body,  arms  and  legs  were  skinned,  bruised  and 
contused;,  his  abdomen  was  bruised,  black  and  blue;  and  he 
was  internally  shocked,  shaken  and  injured;  his  left  eye  and 
back  were  injured  and  his  back  was  so  lame  that  for  a  long 
time  he  could  not  walk;  and  his  kidneys  and  bladder  were 
so  badly  injured  that  for  some  time  he  was  unable  to  urinate 
and  became  in  danger  of  sepsis;  and  so  on  this  account  and 
because  of  his  advanced  age  ( . . . .  years)  his  condition  from 
said  causes  became  too  dangerous  to  permit  an  operation 
such  as  was  required  to  properly  bring  said  fractured  arm 
back  into  its  socket  and  restore  it  to  its  original  form  and 
condition;  and  that  had  it  not  been  for  plaintiff's  previous 
good  health  he  would  have  died;  that  in  setting  said  arm  it 
became  necessary  to  draw  it  inwards  and  upwards,  leaving 
part  of  the  bone  of  the  elbow  projecting,  and  the  arm  has 
become  stiffened  and  partially  helpless ;  that  plaintiff  was  eon- 
fined  to  his  room  for weeks  under  continuous  skilled 

medical  attendance  and  nurses,  and  upon  getting  out  was 
for  a  long  time  unable  to  walk  without  a  cane ;  and  that  until 


1068  ANNOTATED    FORMS  OF   i'LEADIXG    AND   PRACTICE 

of  that  year  he  was  continually  under  the  care 

and  advice  of  a  skilled  .surgeon,  endeavoring  to  get  his  arm 
re-formed  and  a  better  use  thereof;  that  the  sight  in  said 
injured  eye  is  almost  entirely  destroyed,  and  he  has  been 
informed  by  skilled  oculists  that  the  optic  nerves  have  been 
partially  destroyed  and  that  he  will  never  regain  his  sight; 
that  he  suffered  great  mental  and  physical  pain  aiul  anguish, 
and  was  put  to  great  exj)ense  for  medieiiu',  medieal  attend- 
ance and  appliances,  nursing  and  additional  care  and  for 
other  and  miscellaneous  articles  and  things  recjuired  and  used 
by  him  in  and  about  endeavoring  to  be  healed  and  cured, 
and  still  suffers  almost  continual  |)ain  in  both  said  injured 
eye  and  arm;  that  the  arm  is  partially  stiffened  and  he  can 

bend  the  same  up  to  within  only inches  from  his 

mouth,  on  account  of  which  he  is  unable  to  play  any  instru- 
ment other  than  the  French  hoi-n,  which  he  is  obliged  to  hold 
almost  wholly  in  his  right  hand  while  i)laying  the  same;  that 
he  has  no  trade  or  profession  other  than  that  of  being  a 
musician,  and  that  the  demand  for  French  horn  players  is 
so  small  and  his  employment  thereat  so  limited  that  his  earn- 
ing capacity  has  been  through  said  injuries  reiliieeil  to  almost 
nothing. 

And  plaintiff  alleges  that  contrary  to  their  said  duty  and 
representations,  the  said  defendants  and  each  of  them  pre- 
pared, kept  and  left  the  said  premises  in  the  aforesaid  condi- 
tion, that  they  failed  to  keep  said  hallway  and  said  stairway 
lighted,  so  that  persons  unaef|uainted  with  the  conditions  and 
surroundings  could  readily  iind  their  way  over  and  through 
the  same,  and  that  they  failed  to  have  and  keep  some  one  in 
said  hall  or  on  .said  stairway,  or  in  charge  of  said  musicians  to 
point  out  to  them  the  conditions  therein  and  thereof  or  to  lead 
them  into  and  out  of  said  theater  in  safety,  and  failed  to  pro- 
vide a  railing  along  the  east  side  of  said  stairway  for  per- 
sons so  ascending  or  descending  to  steady  themselves  thereon  : 
all  of  which  was  or  ought  to  have  been  known  to  the  defendants 
and  each  of  them;  and  that  the  said  premises  being  and  having 
been  left  in  said  state  were  in  a  dangerous  condition  for  use, 
such  as  Avas  contemplated  In'  plaintiff,  of  which  plaintiff'  ought 
to  have  been  informed  or  warned ;  which  said  omissions  could 
and  ought  to  have  been  prevented  and  the  failure  so  to  do  con- 
stituted negligence  of  the  defendants  and  each  of  them;  and 
that  on  account  of  the  said  negligence  of  said  defendants  and 
each  of  them  plaintiff'  so  fell  and  was  injured  as  aforesaid,  with- 
out his  fault ;  to  plaintiff's  damage  of  $ ;  wherefore  he 

brings  this  suit. 

1618  Street  crossing",  action 

Those  who  are  in  charge  of  a  street  car  must  keep  a  sharp 
lookout  as  they  approach  a  street  crossing,  and  must  slacken  the 


PERSONAL  INJURIES  1069 

speed  of  the  car  sufficiently  to  enable  them  to  have  it  under 
control  to  avoid  injuring  those  who  may  be  crossing  the  street.^^o 

1619  Street  crossing,  Narr.  (Va.) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the day  of 

,  19..,  and  for  a  long  time  prior  thereto,  the  said 

defendant  was,  and  had  been  a  common  carrier  of  passengers 
for  hire  and  reward,  over  and  along  a  certain  line  of  railway 

between  the  city  of in  the  District  of  Columbia,  and 

the  city  of ,  state  of  Virginia,  the  motive  power 

whereof  was  electricity  and  the  operation  whereof  was  by 
electrical  machinery  and  appliances,  with  certain  stations  or 
stopping  places  along  its  said  lines  for  the  taking  on  and  dis- 
charging of  passengers;  that  on  the  day  and  year  aforesaid 
and  for  a  long  time  prior  thereto,  it  was  and  had  been  the 
custom,  usage,  and  practice  of  the  said  defendant  to  provide 
and  display  a  light,  known,  to  wit,  as  a  head-light,  and  other 
lights,  on  or  from  each  of  its  said  trains,  so  run  as  aforesaid, 

on  its  said  line  of  railway,  between  the  said  city  of 

in  the  District  of  Columbia,  and  the  said  city  of , 

in  the  state  of  Virginia,  whenever  the  said  trains  were  run 
over  or  on  the  said  line  of  railway  during  or  in  the  night 
time,  said  lights  being  so  placed  and  arranged  as  to  be  easily 
visible  from  the  exterior  of  said  train  and  sending  a  reflection 
for  a  long  distance,  to  wit,  to  the  distance  of  three  hundred 
feet  ahead ;  that  the  said  defendant,  being  such  common 
carrier,  of  passengers,  as  aforesaid,  on  the  day  and  year  afore- 
said, was*  engaged  in  the  operation  of  a  certain  train  of  cars 
or  coaches  along  its  said  line  of  railway  from  its  station  in 

the  city  of ,  District  of  Columbia,  aforesaid,  to  the 

city  of ,  state  of  Virginia,  aforesaid,  with  said  sta- 
tions or  stopping  places  as  aforesaid,  for  the  taking  on  anc 
discharging  of  passengers  as  aforesaid,  which  said  train  of 
cars  or  coaches  departed  from  the  said  station  of  the  defend- 
ant company  in  the  city  of aforesaid,  at  a  cer- 
tain time,  to  wit,  about  ....  o'clock  P.  M.,  it  being  the  night 
time  of  that  day,  when  the  said  plaintiff,  at  the  special  instance 
and  request  of  the  said  defendant,  became  and  was  a  pas- 
senger on  said  train  of  cars  or  coaches,  to  be  carried  on  a  cer- 
tain journey,   to   wit,  from   the   defendant's   said   station   in 

the  city  of   District  of  Columbia,  to  a  certain 

station    or   stopping   place   along   the   said   line   of   the   said 

defendant  in  the  county  of  ,  state  of  Virginia, 

between  the  city  of   aforesaid,  and  the  city  of 

aforesaid,  known,  to  wit,  as  " ,"  for  a 

certain  fare  and  reward  in  that  behalf  paid  to  the  said  defend- 

230  United  Rys.  &  E.  Co.  v.  Kolken, 
114  Md.  160,  168,  171  (1910). 


1070  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

ant ;  that  the  said  plaintiff,  being  such  passenger,  alighted  from 
the   said    train   of    cars    or    coaches   at    the    said    station    of 

" "  at  wliicli  said  station  there  is  a  public  road 

crossing  at  grade;  that  in  crossing  the  said  defendant's  tracks 
to  get  to  the  station  shed,  there  being  double  tracks  at  that 
point,  the  said  plaintiff  was  using  the  said  public  road 
crossing.* 

That  thereupon,  it  became  and  was  the  duty  of  the  said 
defendant,  its  servants,  agents  and  employees  to  provide  and 
display  a  light,  known  to  wit,  as  a  head-light,  or  other  lights 
as  was  its  custom,  usage,  and  practice,  afor(»said,  on  each  of 
its  trains,  running  over  or  upon  its  said  tracks  or  line  of 
railway  at  that  point  at  that  time;  but,  notwithstanding  its 
duty  in  that  behalf,  and  wholly  failing  and  refusing  to  perform 
or  fulfil  its  obligations  to  the  said  plaintiff,  and  without  any 
fault  or  neglect  on  the  part  of  the  said  plaintiff',  so  negligently 
conducted  itself,  through  its  agents,  servants  and  employees, 
that  when  the  plaintiff  was  crossing  the  eastern  track  of  the 
said  defendant's  said  line  of  ralway,  at  the  said  station  or 

stopping  place  known  as   ,  a  train  operated  by 

the  said  defendant,  its  servants,  agents  and  employees  not  dis- 
playing any  light  or  lights  which  were  visible  from  the  exterior 
of  the  train  was  allowed  to  strike  the  said  plaintiff  with  great 
force  and  violence  and  to  injure  him  as  hereinafter  set  forth. 

2.  (Consider  first  count  to  star  as  here  repeated  the  same  as 
if  set  out  in  words  and  figures.) 

And  it  also  then  and  there  became  and  was  the  duty  of  the 
defendant  to  use  due,  ordinary,  and  proper  care  to  safely 
carry  the  said  plaintiff'  along  and  upon  the  said  journey  and  to 
safely  land  him  at  his  destination ;  but  the  said  defendant,  not 
regarding  its  duty  in  this  behalf,  and  wholly  failing  to  use, 
due,  ordinary  and  proper  care,  and  without  any  fault  or  neg- 
lect on  the  part  of  the  said  plaintiff',  so  conducted  itself 
through  its  servants,  agents  and  employees,  in  this  that,  when 
the  said  train  of  cars  or  coaches  had  reached  the  said  station 

or  stopping  place  known  as ,  in  the  said  county  of 

,  as  aforesaid,  and  the  said  plaintiff"  had  alighted 

from  the  said  train  of  cars  or  coaches,  another  train  of  cars 
or  coaches,  operated  by  the  said  defendant,  through  its  serv- 
ants, agents  and  employees,  and  running  in  an  opposite  direc- 
tion to  the  one  from  which  the  said  plaintiff  had  alighted  and 
on  the  eastern  track  of  the  said  defendant's  line  of  railway, 
was  so  negligently  run,  by  the  said  servants,  agents  or 
employees  of  the  said  defendant  in  that  no  head-light  was 
displayed  and  whistle  was  blown,  and  said  train  of  cars  was 
allowed,  without  any  fault  or  neglect  on  the  part  of  the  said 
plaintiff,  and  without  any  warning  to  the  said  plaintiff,  to 
strike  him,  the  said  plaintiff,  with  great  force  and  violence, 
and  to  injure  him  as  hereinafter  alleged. 


PERSONAL  INJURIES  1071 

3.  (Consider  first  count  to  star  as  here  repeated  the  same  as 
if  set  out  in  words  and  figures.) 

That  thereupon  it  also  became  and  was  the  duty  of  the 
said  defendant,  its  servants,  agents  and  emplo3^ees,  to  use  due 
and  proper  care  to  give  reasonable  warning  to  the  said  plain- 
tiff of  the  approach  of  trains  on  its  said  tracks  by  providing 
and  displaying  a  light  or  lights  on  its  said  train,  so  approach- 
ing the  said  public  road  crossing,  said  lights  being  so  placed 
and  arranged  as  to  be  easily  visible  from  the  exterior  of  said 
train,  and  sending  a  reflection  for  a  long  distance,  to  wit,  two 
hundred  feet  ahead;  but  the  said  defendant,  not  regarding 
its  duty  in  this  behalf,  and  wholly  failing  and  refusing  to  per- 
form its  obligation  to  the  said  plaintiff,  and  without  any  fault 
or  neglect  on  the  part  of  the  said  plaintiff  so  negligently  con- 
ducted itself,  through  its  servants,  agents  and  employees,  that 
when  the  said  plaintiff  was  crossing  the  eastern  track  of  the 
said  defendant's  said  line  of  railway  at  the  said  station  or 

stopping  place  known  as  " "  in  the  said  county 

of ,  state  of  Virginia,  it  being  in  the  night  time, 

a  train  of  ears  or  coaches  operated  by  the  said  defendant,  its 
servants,  agents  and  employees,  and  not  carrying  or  displaying 
any  light  or  lights  which  were  visible  from  the  exterior  of 
said  train  of  cars  or  coaches,  was  so  negligently  run  as  to 
strike  the  said  plaintiff  with  great  force  and  violence,  throw- 
ing him  a  long  distance,  and  greatly  injuring,  wounding  and 
crushing  the  body  of  the  said  plaintiff,  and  greatly  injuring 
the  said  plaintiff  in  and  about  his  head,  back,  spine,  hips,  legs 
and  feet,  thereby  causing  the  said  plaintiff  great  bodily  suf- 
fering, injury  and  pain,  so  that  the  plaintiff  has  been  pre- 
vented from  following  his  usual  occupation  and  preventing 
said  plaintiff  from  obtaining  a  large  sum  of  money  which  he 
otherwise  would  have  obtained  in  and  about  his  regular  em- 
ployment, and  permanently  injuring  said  plaintiff  in  his 
mind  and  body  and  causing  said  plaintiff  to  expend  large  suras 
of  money  in  and  about  his  efforts  to  be  cured  of  his  hurts,  cuts, 
bruises  and  injuries,  to  the  damage  of  the  said  plaintiff  in 
the  sum  of  dollars. 

And  therefore  he  brings  his  suit,  etc. 

1620  Streets  and  highways,  action 

Permitting  uninsulated  wires  to  remain  in  the  public  streets 
endangering  persons  passing  along  the  same,  renders  a  munici- 
pality liable  for  injuries  caused  thereby. 23 1  A  municipality  is 
not  liable  for  an  injury  resulting  from  an  obstruction  of  its 

231  Palestine  v.  SUer,  225  HI.  630, 
637  (1907). 


1072  ANXOTATED   FORMS  OP   PLEADING  AND   PRACTICE 

streets  by  a  licensee,  unless  the  licensee  performs  a  work  in  the 
street  in  an  unusual  and  negligent  manner  with  the  municipal- 
ity's permission  after  notice.--*-  A  municipality  is  liable  for 
an  injury  which  occurs  from  a  defect  in  a  street  or  highway 
which  could  have  been  foreseen  and  avoided  by  the  authorities  of 
the  municipality  by  the  exercise  of  ordinary  care  and  prudence, 
and  of  wliich  defect  the  municipality  had  actual  or  constructive 
notice.  Whether  a  municipality  had  notice  of  the  defect  is  a 
question  of  fact  where  there  is  a  conflict  of  the  evidence ;  it  is 
a  question  of  law  where  the  facts  are  undisputed  and  but  one 
reasonable  inference  can  be  drawn  from  tliem.'-^^  A  munici- 
pality is  liable  in  damages  to  a  pei-son  who  is  injured  by  a 
defect  in  the  street  while  riding  a  bicycle;  but  ordinarily,  this 
liability  does  not  extend  to  injuries  or  damages  sustained  from 
a  sharp  stone,  a  tack,  a  bit  of  glass  or  coal  happening  to  be  in 
the  road.23^  A  township  is  not  liable  for  personal  injuries  sus- 
tained by  a  person  while  traveling  in  a  highway,  unless  the 
township's  negligence  is  the  proximate  cause  of  the  in  jury  .^•'''^ 
In  Michigan  a  person's  right  to  recover  from  a  municipality 
for  personal  injuries  sustained  upon  a  street  or  highway  is 
governed  by  statute  and  the  right  extends  only  to  such  injuries 
as  are  sustained  by  reason  of  any  neglect  to  keep  the  ways  in 
repair  and  in  a  reasonably  good  and  safe  condition  fit  for  travel ; 
it  does  not  include  accidents  occurring  from  extraneous  acts 
or  neglect,  such  as  snow,  sleet  and  ice.^^o 

1621  Streets  defective,  Narr.  (111.) 

For  that  whereas,  the  defendant,  the  city  of , 

being  a  municipal  corporation,  before  and  on,  to  wit,  the 
day  of  ,  19.  .,  was  possessed  and  had  con- 
control    of    a    certain    public    street    or    highway    known    as 

street  in  the  city  of aforesaid,  at, 

to  wit,  a  point  where  said   street  is  intersected 

with  a  certain  other  public  street  in  the  city  of 

aforesaid,  known  as,  to  wit, * ,  street  in  said  citv 

of 

And  plaintiff  avers  that  it  then  and  there  became  and  was 
the  duty  of  the  said  defendant  to  keep  the  said  

232Lockport  v.  Licht,  221  111.  35,  2?. 5  Bell  v.  Wajne,  123  Mich.  386, 

39  (1906).  390    (1900);    Briggs   v.   Pine   River, 

233Boender    v.    Harvey,    251    111.  150  Mich.  381.  387  (1907). 

228,231(1911).  236  Miller    v.    Detroit,    156    Mich. 

234Molwav    V.    Chicago.    239    111.  630,633,637(1909). 
487,  489,  493  (1909). 


PERSONAL   INJURIES  1073 

street  at  or  near  the  intersection  of  the  said    

street  in  good  and  safe  repair  and  condition,  and  to  keep  the 
same  free  and  clear  of  holes  and  obstructions  by  or  on  ac- 
count of  which  persons  passing  along  and  upon  said  highway 
might  in  any  manner,  while  in  the  exercise  of  due  care  and 
caution  for  their  own  safety,  be  injured;  but  the  defendant, 
not  regarding  its  duty  in  that  behalf,  and  while  it  was  so  pos- 
sessed and  had  the  care,  custody  and  control  of  the  said  street 
or  highway,  to  wit,  street,  at  or  near  the  inter- 
section with  said street,  on,  to  wit,  the  day  and 

date  last  aforesaid,  at  said  place  aforesaid,  wrongfully,  neg- 
ligently and  carelessly  suffered  and  allowed  said  street  or 
highway  known  as,  to  wit,  street,  to  be  and  re- 
main in  bad  and  unsafe  repair,  and  condition,  in  that  the 
said  defendant  wrongfully,  negligently  and  carelessly,  for  a 
long  space  of  time  immediately  prior  to  the  date  aforesaid, 

to  wit,  for  the  space  of   months  prior  thereto, 

and  on  the  date  aforesaid,  allowed  and  permitted  a  hole  to 
be  and  remain  in  the  said  street  at  the  place  aforesaid,  of 

great  depth,  of  the  depth  of,  to  wit, inches,  and 

of  great  width,  of  the  width,  to  wit,  of feet,  and  of 

great  length,  of,  to  wit,  the  length  of feet,  and  so  as 

to  be  in  the  way  of  and  obstructing  the  passage  of,  and  to 
endanger  persons  and  vehicles  passing  along  and  upon  the 
said  street  or  highway  and  so  as  to  endanger  persons  pass- 
ing along,  riding  or  driving  upon  the  said  street  or  highway 
at  the  place  aforesaid,  of  all  of  which  dangerous  and  unsafe 

condition  of  said  street  known  as,  to  wit, street, 

the  defendant  then  and  there  on  the  date  aforesaid  and  for 
a  long  time  previous  thereto,  had  notice,  or  in  the  exercise  of 
due  care  would  have  had  notice. 

And  the  plaintiff  avers  that  on,  to  wit,  the  date  aforesaid, 
he  was  riding,  driving  and  passing  along  and  upon  the  said 

street  or  highway  known  as street  on  a  bicycle, 

in  a  northerly  direction  at  or  near  the  intersection  of  the 

said street  with  the  certain  other  street  known 

as  street,  with  all  due  care  and  caution  on  his 

own  part  for  his  own  safety,  and  by  reason  of  the  negligence 
of  the  said  defendant,  the  bicycle  on  which  the  plaintiff  was 
then  and  there  riding  then  and  there  unavoidably  ran  and 
was  unavoidably  propelled  into  the  said  hole,  and  as  the 
direct  result  of  the  negligence  of  the  said  defendant  and  then 
and  there  by  reason  of  the  premises,  the  plaintiff,  who  was 
then  and  there  without  any  knowledge  of  the  presence  of  the 
said  hole  in  said  street,  was  then  and  there  precipitated  to 
and  upon  the  ground  or  pavement  there  with  great  force 
and  violence  and  was  then  and  there,  by  reason  of  the  prem- 
ises, greatly  bruised,  injured,  wounded  and  hurt :  and  by  and 
in  consequence  of  said  injuries  so  received,  the  said  plaintiff 
then  and  there  became  sick,  sore,  lame  and  disordered,  and 


1074  ANNOTATED   FORMS   OF    PLEADING    AND    PRACTICE 

SO  remained  for  a  long  space  of  time,  to  wit,  from  thence 
hitherto;  and  by  reason  of  the  prenii.sL's  and  as  the  din-ct  re- 
sult of  the  negligence  of  the  said  defendant  as  aforesaid,  the 
plaintiff's  left  femur  or  hip  and  the  bones  thereof  were  then 
and  there  broken  and  fractured  and  the  plaintiff  received 
severe,  serious  and  permanent  injuries  to  his  nerves  and  nerv- 
ous system  and  was  otherwise  bruised  and  permanently 
injured  in  his  left  side,  hip  and  leg  and  has  suffered  great  pain 
and  was  prevented  from  attending  to  and  transacting  his 
ordinary  business  and  affairs.  Phiintiff'  furtlier  avers  at  the 
time  when,  etc.,  he  was  receiving  large  remuneration  or  earn- 
ings for  his  time  and  services,  to  wit,  the  sum  of  $ 

per  day,  and  that  by  reason  of  the  premises  he  has  become 
unfit  to  further  labor  without  great  inconvenience  and  has 
suff'ered  great  loss  of  wages  and  will  hereafter  be  prevented 
and  deprived  of  such  wages,  and  will  sutYer  great  loss  and 
damage.  And  plaintiff  avers  that  by  reason  of  the  premises 
he  has  been  obliged  to  lay  out  and  expend  and  become  liable 
for  large  sums  of  money  for  physicians'  and  surgeons'  serv- 
ices and  for  the  expenses  of  nurses  and  medicines  in  endeav- 
oring  to   be   cured   of   the   injuries  so   sustained   by   him   as 

aforesaid,  to  w-it,  the  sura  of  $ To  the  damage,  etc. 

(Add  averment  of  notice  to  municipality  as  in  Section  1G13) 

(West  Virginia) 

For  this,  that  whereas,  before  and  at  the  committing  of 
the  grievances,  wrongs  and  injuries  hereinafter  mentioned, 
there  was  a  common  and  public  highway  or  road  running  along 

the  bank  of river  on  the  lower  or  west  side  of 

said  river  through  a  part  of  said  city  of   and 

within   the   corporate   limits   thereof,   in   the  said   county   of 

,   intersecting    street   of   said   city, 

over,  on  and  upon  which  said  common  and  public  road  the 
citizens  of  this  state  and  all  others  had  the  right  to  travel, 
pass  and  repass  without  hindrance  or  obstruction ;  and  it 
was  then  and  there  the  duty  of  the  said  defendant  to  put  and 
keep  that  part  of  the  said  common  and  public  road  that  was 

within  the  corporate  limits  of  the  said  city  of in 

good  repair ;  yet,  the  said  defendant  well  knowing  the  premises 

heretofore,  to  wit,  on  the  day  of   ,  19..,  and  for  a 

long  time  previous  thereto,  at  the  county  and  city  aforesaid, 
wrongfully  and  injuriously  allowed  and  permitted  that  part 
of  the  said  common  or  public  road  situated  in  its  corporate 
limits  to  become  and  remain  in  bad  condition,  order  and  re- 
pair in  this,  that  the  said  defendant  allowed  the  said  road 
to  become  sideling,  and  permitted  a  large  rut  to  be  worn  in, 
along  and  across  said  public  road  at  or  near  a  sugar-tree, 
standing  in  or  on  the  side  of  said  road  a  short  distance  above 

the  place  the   railroad  crosses  said  public  road, 

in  the  city  and  county  aforesaid,  and  within  the  corporate 


PERSONAL  INJURIES  1075 

limits  aforesaid;  and  by  means  whereof  afterwards,  to  wit, 
on  the  day  and  year  aforesaid,  at  the  city  and  county  afore- 
said,   the    said    plaintiff    wife    of    the    plaintiff 

,    then    lawfully   riding,    going   and    passing    in, 

upon  and  along  the  said  common  and  public  road  in  and  with 
a  buggy  to  which  one  horse  was  attached  and  hitched,  and 
on  the  sideling  place  aforesaid  the  said  buggy  slipped  and 
slid,  and  the  wheels  on  one  side  thereof  fell  into  the   said 

rut,  whereby  she,  the  said   was  then  and  there 

violently  thrown  out  of  said  buggy,  and  then  and  there  was 
greatly  injured,  bruised,  wounded  and  crippled,  and  her  life 
put  in  great  danger  and  peril,  to  wit,  at  the  city  and  county 
aforesaid.    Wherefore,  etc.-^'^ 

1622  Sudden  backing-  of  street  car,  Narr.  (Va.) 

For  this,  to  wit,  that  by  decree  of  the court  of 

the  entered  on  the  ....  day  of in  the 

city  of against  and 

and   others,   the   said    and    were 

appointed  receivers  of  the  said  and  were  in- 
structed to  continue  the  operation  of  the  said  street  railways: 
that  said  receivers  were  operating  said  railways  under  said 

decree  on  or  about  the day  of ;  that  by  the 

order  of  the  said court  of  the 

entered  in  said  cause  on  the  ....  day  of  ,  the  said 

plaintiff  was  granted  permission  to  bring  this  action  against 
said  corporations  and  its  said  receivers. 

That  heretofore,  to  wit,  on  the  said day  of 

the  said  and  ,  receivers,  were  operat- 
ing said  lines  known  as  the and  the 

lines,    which    lines    are    extended    from    what    is    known    as 

in  the  county  of eastwardb^  across 

to  what  is  known  as in  said  county  and  thence 

eastwardly  by  what  is  known  as on  said  lines, 

and  thence  eastwardly  to   street  in  the  city  of 

;    that   upon   said   lines   of   street   railway   said 

receivers  carried  passengers  for  hire  and  reward  to  them  in 
that  behalf  expended ;  all  of  which  was  done  by  said  receivers 

under  and  in  pursuance  of  the  aforesaid  decree  of 

appointing  them  as  such  receivers. 

And  the  said  plaintiff  avers  that  heretofore,  to  wit,  on  said 

....  day  of the  said  defendants  had  a  certain  station 

on  its  said  line  near known  as  station , 

which  station  was  the  regular  stop  for  passengers  to  get  upon 
and  alight  from  the  cars  operated  by  said  defendants;  that 
on  the  night  of  the day  of she  was  stand- 
ing at  said  station for  the  purpose  of  boarding 

one  of  the  cars  of  said  defendant's  and  duly  and  properly 

237  Sheff  V.  Huntin^on  (City),  16 
W.  Va.  307,  3U9  (1880). 


1076  ANNOTATED   FORMS   OP   PLEADING    AND   PRACTICE 

notified  the  motorman  in  charge  of  said  car  that  she  desired 
to  get  upon  the  same,  for  the  purpose  of  being  carried  as  a 
passenger  upon  said  car;  and  that  thereupon  it  bccaniL'  and 
was  the  duty  of  said  defendants,  their  agents,  servants  and 
employees  to  stop  said  ear  for  the  purpose  of  allowing  the 
plaintiff  to  get  upon  the  same. 

Yet,  the  said  plaintiff"  avers  that  the  said  defendants  did 

not  stop  said  car  at  said  station ,  but  negligently 

and  carelessly  ran  said  car  by  said  station  when  said  car 
stopped  for  the  jjurpose  of  allowing  the  plaintitf  to  get  upon 
the  same;  that  thereupon  she  walked  in  the  direction  of  said 
car  for  the  purpose  of  boarding  said  car,  when  defendants, 
their  agents,  servants  and  employees  in  charge  of  said  car, 
without  any  notice  to  the  plaintiff  and  without  any  fault  upon 
the  part  of  the  plaintiff",  negligently,  carelessly,  and  recklessly 
and  suddenly  ran  said  car  back  in  the  direction  of  the  plain- 
tiff' and  with  such  force  and  violence  that  the  plaintiff'  was 
unable  to  get  out  of  the  way  of  said  car,  aiul  negligently,  reck- 
lessly and  carelessly  ran  said  car  onto,  upon  and  aj^'ainst  the 
j)hiin1iff';  by  reason  whereof  the  plaint itV  was  knocked  down, 
bruised,  mangled,  and  lacerated,  antl  the  plaintiff's-  back  and 
spinal  column  was  seriously  and  permanently  injured,  and 
the  plaintiff"  was  made  sick  and  sore;  and  the  plaintiff  had  to 
expend  and  did  expend  a  large  sum  of  money,  to  wit,  the 

sum  of dollai-s  in  attemi)ting  to  be  cured  of  her 

injuries;  and  the  said  plaintiff  was  otherwise  seriously  and 
permanently  injured  and  daiiuiified  to  the  damage  of  the  said 
plaintiff  of dollars. 

1623  Sudden  starting  of  meat  chopper,  Narr.  (Mich.) 

For  that  whereas,  heretofore,  to  wit,  on  the day 

of    ,    19..,    plaintiff*   was    and    for   some    time   prior 

thereto  had  been  in  the  employment  of  the  defendant  as  a 
butcher,  aiul  the  defendant  on  the  day  and  year  aforesaid  was 
and  for  some  time  prior  thereto  had  been  owning  and  operat- 
ing a  certain  packing  house  in  the  city  of ,  in  the 

state  and  county  aforesaid,  at  which  said  packing  house  the 
plaintiff"  was  then  and  there  employed  as  a  butcher  by  the 
defenchmt  as  aforesaid  and  in  and  about  which  employment 
the  defendant's  employees  were  required  to  use  certain 
machinery,  also  owned  and  managed  by  the  defendant,  and 
operated  by  steam  power,  among  which  machinery  so  owned 
and  operated  by  the  defendant  was  a  certain  meat  chopper, 
which  said  meat  chopper  was  operated  by  means  of  a  belt  run- 
ning over  loose  and  tight  pulleys,  and  driven  by  steam  power, 
and  governed  by  a  hand  lever  situated  at  or  near  the  hopper 
of  the  said  chopper.  And  while  the  said  plaintiff  was  thus 
employed  by  the  defendant  as  aforesaid,  it  became  and  was 
the  duty  of  the  plaintiff  to  use  and  operate  this  meat  chopper 


PERSONAL  INJURIES 


1077 


at  the  request  of  and  whenever  called  upon  by  the  defendant. 
Plaintiff  avers  that  the  said  chopper  consisted  ot  a  hopper 
and  attached  thereto  and  extended  at  a  right  angle  at  one  side 
was  a  cylinder,  in  which  was  inclosed  a  certain  steel  augur 
revolving  at  a  speed  of  from  two  hundred  (200)  to  three  hun- 
dred (300)  revolutions  per  minute,  when  running,  which  car- 
ried and  drove  the  meat  thrown  into  the  hopper  against  and 
through  certain  plates  attached  to  the  front  of  the  said  cylinder 
by  means  of  metal  caps,  fastened  down  with  a  set  ot  screws, 
which  said  plates  had  holes  drilled  therein,  through  which  the 
said  meat  was  pushed  and  driven  by  the  said  augur  ot  the 
said  machine  against  a  rapidly  revolving  knife,  attached  to 
the  aforesaid  augur  on  the  further  or  outside  face  ot  the  atore- 
said  plates,  and  it  was  customary  and  necessary  to  use  a  piate 
with  certain  sized  holes  for  the  first  chopping,  and  then  to 
change  this  plate  for  a  plate  with  smaller  holes  for  the  second 
chopping,  and  then  again  for  a  plate  with  still  smaller  holes 
for  the  third  chopping,  and  that  all  of  these  plates  had  to  be 
changed  by  hand  after  the  chopping  was  done  and  while  the 
machine  was  not  in  operation;  that  after  the  meat  had  been 
driven  through  the  said  plate  and  any  chopping  operation  was 
completed  the  plates  became  and  were  so  tightly  wedged  into 
and  against  said  cylinder  that  it  was  impossible  to  loosen  and 
remove  the  said  plates  from  the  front  of  the  said  cylinder 
without  pushing  the  same  from  the  inside,  and  in  order  to 
do  so  it  became  necessary  for  the  operator  to  insert  his  hand 
into  the  cylinder  part  of  the  chopper. 

Plaintiff  avers  that  on  the  said of   ....,  1^.  ., 

while  he  was  thus  employed  by  the  defendant  and  was  then 
and  there  working  in  the  packing  house  of,  and  under  the 
direction  and  control  of  the  defendant,  the  defendant  came 
and  ordered  and  directed  the  plaintiff  to  run  a  quantity  ot 
beef   and   pork   mixed,   usually  known   as  hamburger  steak, 
through   the   said  chopping  machine,  which  said  hamburger 
steak  had  to  be  run  through  the  machine  twice    first  with  a 
coarse  plate  and  then  with  a  finer  plate,  and  after  the  said 
hamburger  steak  had  been  run  through  the  chopper  wi  h  the 
coarse  plate  it  became  and  was  the  duty  of  the  plaintiff  to 
change  the  plates  in  the  said  chopper  so  that  the  said  ham- 
burger steak  might  be  run  through  again  with  the  smaller 
date    and  in  order  to  thus  change  the  said  plates  it  became 
and  was  the  duty  of  the  plaintiff  to  insert  his  hand  in  the 
cvlinder  part  of  the  said  chopper  in  which  the  said  augur 
was  located,  and  the  defendant,  being  well  acquainted  with 
the  method  of  operating  the  said  chopper,  stood  by  watch- 
ine    ordering  and  hurrying  the  plaintiff  to  get  through  with 
the  said  chopping,  and  while  the  plaintiff  was  then  running  the 
said  hamburger  steak  through  the  machine  with  the  coarse 
nlate  the  defendant  was  then  and  there  watching  the  chop- 
ping  and  then  and  there  took  charge  and  control  of  the  lever 


1078  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

by  means  of  which  the  steam  power  optiatiii}^  and  driving 
the  said  meat  chopper  was  turned  on  and  oil". 

And  thereupon,  it  became  and  at  all  times  and  particularly 
on  the  day  and  date  and  at  the  time  aforesaid,  it  was  the 
duty  of  the  said  defendant  when  so  taking  charge  and  con- 
trol of  the  lever  by  means  of  which  the  steam  power  operated 
and  drove  the  said  meat  chopper,  and  particularly  when  this 
plaintift'  was  proceeding  to  change  the  plates  and  while  in 
the  act  of  loosening  the  coarse  plate  and  while  the  said  plain- 
tiff was  inserting  his  right  hand  into  the  said  cylinder,  to  so 
operate,  control  and  manage  the  said  lever  as  aforesaid,  and 
to  so  operate  and  manage  it  without  negligence  and  with 
all  due  carefulness  so  that  the  power  would  not  be  turned 
on  and  said  machine  would  not  do  great  harm  and  damage 
to  this  plaintiff,  and  particularly  while  his  hand  was  inserted 
in  the  said  machine  as  aforesaid. 

And  plaintiff  avers  that  when  the  coarse  chopping  of  the 
said  meat  was  done,  defendant  shut  off  the  power,  and  there- 
upon, plaintiff,  in  the  course  of  his  employment,  proceeded  to 
change  the  plates  and  for  the  purpose  of  loosening  the  coarse 
plate  inserted  his  right  hand  into  the  cylinder  of  the  said 
chopper  in  which  the  augur  part  was  located,  and  which  said 
augur  part  revolves  at  the  rate  of  200  to  300  revolutions  per 
minute  when  the  power  is  on  the  machine,  and  while  the  plain- 
tiff had  thus  inserted  his  hand  in  the  said  cylinder  part  of 
the  machine  containing  the  said  augur  and  was  in  the  act  of 
removing  the  coarse  plate,  the  defendant,  without  warning 
to  the  plaintiff  and  before  the  plaintiff  had  an  opportunity 
to  withdraw  or  extricate  his  right  hand  from  the  said  cylin- 
der, carelessly,  recklessly,  and  with  gross  negligence  and 
without  due  regard  to  the  safety  of  the  plaintiff,  turned  the 
stream  power  on  to  the  said  chopper,  thus  causing  the  augur 
part  of  the  machine  to  revolve  rapidly  in  the  cylinder,  and  the 
plaintiff's  right  hand  was  caught  in  the  said  augur  part  of 
the  machine  and  badly  mashed  and  so  much  injured  that  it 
became  necessary  to  amputate  three  fingers  of  his  said  right 
hand,  and  they  were  so  amputated  in  consequence  thereof, 
and  he  was  by  said  injury  caused  great  pain  and  suffering, 
and  greatly  deforming  the  said  right  hand  and  permanently 
disabling  and  injuring  the  plaintiff  from  earning  his  usual 

wages,  to  wit,  about dollars  per  week,  for 

months,  and  from  earning  full  wages  ever  since  that  day,  and 
from  w^hich  injuries  plaintiff  has  never  fully  recovered  and 
is  permanently  injured. 

Plaintiff  avers  that  the  said  injuries  to  him  aforesaid  were 
directly  caused  by  the  defendant  and  by  the  reckless,  care- 
less and  negligent  manner  in  which  the  defendant  operated  the 
said  chopper,  and  plaintiff  himself  was  free  from  negligence  in 


PERSONAL   INJURIES  1079 

respect  to  the  cause  of  said  injury,  whereby  an  action  has 
acci-ued  to  plaintiff  and  against  defendant,  to  plaintiff's  dam- 
age       ($ )  dollars. 

Wherefore,  he  brings  suit,  etc. 

1624  Sudden  starting  of  street  car,  alighting,  action 

A  passenger  who  is  about  to  leave  a  ear  which  has  stopped 
at  a  crossing  has  a  right  to  assume  that  it  will  not  start  until 
he  has  had  a  reasonable  opportunity  to  alight  from  the  car  in 
safety,  and  if  the  car  starts  up  suddenly  and  he  has  been  in- 
jured, the  sudden  starting  up  of  the  car  is  actional  negligence.^^s 

1625  Sudden  starting-  of  street  car,  alighting,  Narr.  (D.  C.) 

For  that  heretofore,  to  wit,  on  the day  of 

the  defendant  was  a  common  carrier  of  passengers  for  hire, 
operating  a  line  of  street  railway  cars,  propelled  by  under- 
ground   electric    power,    on    certain    streets    in    the    city    of 

•  • .  .   in  the  District  of  Columbia,  and  among  others, 

on  a  portion  of street  from  about  the  intersection 

of  said  street  with    avenue,  eastwardly  to  the 

reservation,  park  or  square  in  said  city,  commonly  known  as 

•  •  • square,  and  passing  around  to  the  southward  of 

said   reservation,    park    or   square   and   continuing    eastward 

therefrom  along  said street ;  and  on,  to  wit,  the 

day  of ,  ,  wife  of  the  plaintiff 

became  a  passenger  on  one  of  the  defendant's  said  cars,  and 
paid  the  defendant  the  fair  demanded  of  her,  at  the  rate 
charged  by  the  defendant,  and  became  thereby  entitled  to  be 
safely  carried  in  said  car  to  her  destination  and  to  alight  there- 
from safely. 

And  the  plaintiff  avers  that  while  his  said  wife  was  pro- 
ceeding in  said  car  of  the  defendant  in  the  vicinity  of  the  said 
reservation,  park  or  square,  the  defendant  then  and  there 
stopped  its  said  car  for  the  purpose  of  allowing  passengers  to 

alight  therefrom  at  or  about  the  intersection  of  said 

street  with street  on  the  east  side  of  said  reser- 
vation, park  or  square  in  said  city  and  District. 

And  it  then  and  there  became  and  was  the  duty  of  the 
defendant  to  permit  the  said  wife  of  the  plaintiff  to  alight  from 
its  said  car  in  safety ;  and  the  plaintiff  avers  that  the  defendant 
was  wholly  unmindful  and  neglectful  of  its  duty  in  that  regard 
and  its  agents  and  servants  in  charge  of  the  said  car,  in  which 
the  said  wife  of  the  plaintiff  was  riding,  conducted  themselves 
and  operated  said  car  so  carelessly  and  negligently,  that  when 

238  Moore  v.  Aurora,  Elgin  &  Chi- 
cago R.  Co.,  246  111.  56,  60  (1910), 


1080  ANNOTATED   FORMS  OP   PLEADING    AND   PRACTICE 

said  car  reached  a  point  at  or  about  the  iutersectiou  of  said 

street  with  said street,  and  aft«'r  it 

had  come  to  a  lull  stop  and  vvliiii-  tlit-  said  wife  of  the  phiintilT 
was  in  the  act  of  aligliting  thi-n-ironi,  and  before  she  had  an 
opportunity  to  reach  the  ground  in  safety,  said  car  was,  by 
and  through  the  negligence  and  carelessness  of  the  agents  and 
employees'  of  the  defendant  in  charge  thereof,  suddenly  started 
forward,  and  by  reason  of  such  carelessness  and  negligence 
of  the  agents  and  employees  of  the  defendant,  she,  the  said 
wife  of  the  plaintiff  was  thrown  down  and  her  clothing  was 
caught  by  some  part  of  said  car  or  its  attachments  and  she  was 
dragged  by  s'aid  ear  while  in  rapid  motion,  for  a  long  dis- 
tance, to  wit,  along  the  said street  for  a  large  part 

of  the  distance  between street  and 

street,  and  her  left  knee  was  seriously  and  painfully  bruised, 
strained,  wounded  and  lacerated,  and  she  was  permanently 
lamed  and  injured  and  was  otherwise  greatly  bruised,  hurt 
and  wounded;  and  by  reason  of  her  said  injuries  she  was 
caused  great  pain,  and  suffering  of  body  and  mind  from  that 
time  to  the  present,  and  will  continue  for  the  balance  of  her 
life  to  endure  great  suffering  of  body  and  mind ;  and  by  reason 
of  said  injuries  her  nervous  system  was  and  hath  ever  since 
continued  and  will  hereafter  ever  continue  to  be,  shocked,  hurt 
and  grievously  impaired;  and  she  has  been  permanently  and 
seriously  injured  in  her  nervous  system  and  in  her  bodily 
strength  and  health  and  rendered  unable  to  j)erform  manual 
labor  or  undergo  any  physical  exertion,  thereby  rendering 
necessary  to  the  plaintiff  the  care  and  medical  skill  of  i)hy- 
sicians  and  the  personal  attention  of  servants  and  nurses  and 
of  the  plaintiff  himself,  upon  and  to  the  said  wife  of  the  plain- 
tiff", and  depriving  the  plaintiff'  of  the  services  and  the  society  of 
his  said  wife,  for  a  long  space  of  time,  to  wit,  from  the  said  .... 

day  of hitherto,  during  which  time  the  plaintiff'  has 

suffered  great  anxiety  of  mind  and  has  been  hindereil  from 
attending  his  lawful  business  and  affairs. 

And  plaintiff'  avers  that  by  reason  of  said  injuries  to  his 
said  wife,  he,  the  plaintiff,  has  been  obliged  to  expend  and 
render  himself  liable  for  medical  and  other  attention  to  her, 

his   said   wife,   to   wnt,   the   sum   of    dollars   in 

endeavoring  to  have  her  cured  and  healed  of  the  injuries  afore- 
said. 

And  the  plaintiff  further  avers  that  at  the  time  aforesaid, 

to  wit,  on  the day  of the  said  wife  of  the 

plaintiff  was  and  had  been  prior  thereto  in  full  possession  of 
her  physical  and  nervous  health  and  strength  and  able  to 
give,  and  she  did  give,  her  attention  to  the  household  and  other 
duties  in  and  about  the  home  of  the  plaintiff  and  incident  to 
her  marital  relations  with  him,  but  since  the  date  aforesaid 
and  by  reason  of  the  injuries  aforesaid  she  has  been  and  still 


PERSONAL  INJURIES  1081 

is  unable  to  attend  to  the  same,  to  tlie  great  damage  of  the 
plaintiff. 

And  the  plaintiff  further  avers  that  by  reason  ot  the  in- 
juries aforesaid  to  his  said  wife,  she  became  and  was  and  still 
is  sick  and  for  the  greater  portion  of  the  time  confined  to  her 
bed  and  room,  whereby  the  plaintiff  has  been  and  still  is 
deprived  of  the  society  and  companionship  of  his  said  wife, 
and  likewise  by  reason  of  said  injuries,  her  health  has  become 
so  impaired  that  it  has  now  become  necessary  to  place  her 
in  a  sanitarium  for  treatment  thereby  and  to  a  more  complete 
extent,  further  depriving  the  plaintiff  of  her  society  and  com- 
panionship and  subjecting  him  to  great  expense ;  and  by  reason 
of  the  said  injuries  to  his  said  wife,  the  plaintiff  will  ever 
hereafter  continue,  so  long  as  she  shall  live,  to  be  put  to  great 
expense  for  medical  and  other  attention  and  nursing  for  her, 
his  said  wife ;  all  to  his  great  damage. 

(Illinois) 

For  that  whereas,  on,  to  wit,  the day  of ,  19-  •, 

and  prior  thereto,  the  said  defendant,    ,  was  a 

corporation  duly  organized  and  existing  under  and  by  virtue 
of  the  laws  of  the  state  of  Illinois,  and  was  engaged  in  the 
business  of  transporting  passengers  in  street  cars  for  hire  iq 

the  city  of ,  in  the  county  of afore. 

said,  and  was  possessed  of  divers  cars  which  were  propelled 
by  electricity  and  were  commonly  known  as  electric  street 
cars,  and  was  also  possessed  of  certain  rails  or  tracks  which 
were  laid  upon  and  along  a  certain  public  highway  in  said  city 
of ,  to  wit,  upon street. 

And  the  plaintiff  avers  that,  on,  to  wit,  said  ....  day  of 
19.  .,  and  in  the  county  aforesaid,  the  plaintiff  be- 
came a  passenger  for  hire  upon  one  of  the  defendant's  said 
electric  cars,  and  then  and  there  paid  her  fare  as  such  pas- 
sengers; that  it  then  and  there  became  and  was  the  duty  of 
the  said  defendant  to  exercise  the  highest  degree  of  care  and 
diligence  in  safely  transporting  the  plaintiff  as  such  passenger 
in  its  said  car  and  over  its  said  tracks  along  and  upon 
said  street  in  said  city  as  aforesaid.  .  .,    ■■ 

Yet  the  plaintiff  avers,  that  the  said  defendant  wholly  failed 
in   its'  duty   in   that   behalf,   and  by   its   servants   then   and 

there  upon,  to  wit,  said street,  and  at  or  near  to 

the    intersection    of    said    street    with    V.  •  1*^^?*' 

operated,  controlled  or  managed  said  car,  upon  which  the 
plaintiff  was  a  passenger  as  aforesaid,  so  negligently  and  care- 
lessly and  with  such  a  want  of  due  care  for  the  personal  safety 
of  the  plaintiff,  that  by  reason  of  such  negligence  and  want 
of  due  care  by  the  defendant,  the  plaintiff,  while  exercising 
due  care  and  diligence  for  her  own  safety,  was  thrown  vio- 


1082  ANNOTATED   FORMS   OF    PLEADING   AND    PRACTICE 

lently  from  said  car  to  the  ground,  whereby  plaintilY  was 
severely  hurt  in  the  particulars  hereinafter  mentioned. 

2.  As  a  second  count  herein  the  plaintiff  avers  that  after 
she  became  a  passenger  as  aforesaid  .she  signihed  to  the  con- 
ductor of  said  car  her  desire  to  alight  from  said  car  at  the 

intersection   of   said    street    with    

street  aforesaid,  and  said  car  was  thereupon  slowed  down  and 
came  to  a  standstill,  and  plaintiff  was  thereby  invited  to  alight 
therefrom ;  and  plaintiff'  thereupon,  with  due  care  and  dil- 
igence, was  proceeding  to  alight  from  said  car;  that  it  there- 
upon became  and  was  the  duty  of  the  defendant  not  to  sud- 
denly and  without  warning  to  the  plaintiff'  s-tart  up  said  car 
v^hile  plaintiff'  was  proceeding  to  alight  therefrom  and  before 
plaintiff  had  been  allowed  a  reasonable  time  to  alight  there- 
from; yet,  the  defendant,  not  regarding  its  duty  in  that 
behalf,  did  suddenly  and  without  warning  to  the  plaintiff 
start  up  said  car  while  phiintitf  was  proceeding  to  alight  tiiere- 
from  and  before  plaintiff'  had  been  allowed  a  reasonable  time 
to  alight  therefrom,  whereby  and  by  reason  of  which  negli- 
gence of  the  defendant,  plaintiff,  while  in  the  exercise  of  due 
care  and  caution  for  her  own  safety,  was  thrown  violently  to 
the  ground,  whereby  plaintiff  was  severely  hurt  and  injured. 

And  in  particular  did  break  and  fracture  the  bone  of  her 
left  hip,  and  the -plaintiff  also  sustained  other  great  and  severe 
injuries,  and  was  otherwise  greatly  wounded,  hurt  and  bruised, 
and  suff'ered  a  violent  shock  to  her  nervous  system,  and  became 
otherwise  sick,  sore  and  disordered,  and  remained  so  for  a 
long  time,  to  wit,  from  thence  hitherto;  and  by  reason  of  the 
injuries  aforesaid  said  plaintiff  suff'ered  great  pain  and 
anguish,  and  was  hindered  and  prevented  from  attending  to 
her  ordinary  business  and  affairs,  and  was  deprived  of  various 
profits  and  gains  which  she  otherwise  could  and  would  have 
had;  and  said  injuries  are  of  a  jxTmanent  character;  and 
plaintiff  will  therefore  be  hereafter  hindered  and  delayed  from 
following  her  business  and  aff'airs  as  she  otherwise  could  and 
would  do;  and  the  plaintiff'  was  obliged  to  expend  and  did 
expend  divers  sums  of  money,  to  wit.  the  sum  of  $ ,  iu  get- 
ting cured  of  her  said  injuries.    To  the  damage,  etc. 

6 

For  that  whereas,  the  defendant,  on,  to  wit,  the day  of 

.,  19.  .,  in  said  county,  was  possessed  of  and  using  and 

operating  a  certain   line   of  street  railroad  extending  along 

•  •, avenue  in  the  city  of in  said  county, 

with  certain  cars  or  trains  of  cars  running  thereon  for  the 
convenience  of  passengers  for  reward,  and  the  plaintiff,   at 

,  in  said  county,  on  said  day  became  a  passenger 

on   a   certain   car   or  train   of   cars   of   the   defendant   being 
operated  on  said  street  railroad  line  on  said   


PERSONAL   INJURIES  1083 

avenue  in aforesaid,  for  a  certain  reward  to  the 

defendant  in  that  behalf  paid  by  the  plaintiff;  that  the  plain- 
tiff was  desirous  of  getting  off  of  said  car  of  the  defendant  of 

which  he  was  riding  where  said avenue  crosses 

street  in  said  city,  and  signaled  the  conductor 

of  said  car  to  stop  said  car  or  train  of  cars  at  said 

street;    that    he   had   with   him    at    that    time    his    daughter 

,  a  child  of,  to  wit,  years  of  age,  and 

that  it  was  necessary  for  him  to  assist  said  child  off  of  said 
train ;  that  it  then  and  there  became  and  was  the  duty  of  the 
defendant  upon  the  arrival  of  the  said  car  or  train  of  cars  at 

aforesaid  to   give  the  plaintiff  an  opportunity 

of  safely  alighting  therefrom  and  of  helping  his  said  child 
off  of  said  car,  and  to  stop  a  sufficient  length  of  time,  he  being 
a  passenger  as  aforesaid,  to  allow  him  to  alight  with  safety 
from  said  car  on  which  he  was  riding,  and  to  take  with 
him  his  said  daughter;  yet,  the  defendant  did  not  regard  its 
said  duty  or  use  due  care  in  that  behalf,  but,  on  the  con- 
trary thereof,  the  said  defendant  by  its  servants  caused  the 
said  car  or  train  of  cars  to  be  stopped  at  or  near  the  cross- 
ing of  said avenue  and street,  for 

the  purpose  of  allowing  passengers  to  alight  from  said  car  or 
train  of  cars,  and  that  while  said  car  or  train  of  cars  was  so 
stopped,  and  while  the  said  plaintiff"  was  using  all  reasonable 
care  and  caution  to  avoid  the  injury  complained  of,  and  while 
the  plaintiff'  was  attempting  to  alight  with  his  said  daughter 
from  the  said  ear,  the  said  defendant,  through  its  servant  or 
servants,  negligently  and  carelessly  caused  the  said  car  or 
train  of  cars  to  be  set  in  motion  while  the  said  plaintiff'  with 
his  said  daughter  was  so  alighting  therefrom,  and  thereby 
the  plaiutitr  was  then  and  there  thrown  with  great  violence 
from  and  off  said  car  to  and  upon  the  ground,  and  upon  cer- 
tain rocks  and  stones,  and  upon  a  certain  pavement  covering 
the  ground ;  by  means  whereof  the  said  plaintiff  was  bruised, 
hurt  and  wounded  and  otherwise  greatly  injured,  and  as  a 
result  of  such  injury  he  became  sick,  sore,  lame  and  dis- 
ordered, and  his  health  was  seriously  and  permanently  injured, 
and  he  became  unsound  in  limb  and  body,  and  was  obliged 
to,  and  did  pay  and  incur,  in  endeavoring  to  be  cured,  large 
sums  of  money  for  physicians  and  medicines,  to  wit,  the  sum  of 

dollars ;  and  the  plaintiff  avers  that  previous  to 

said  injury,  as  aforesaid,  plaintiff'  was  and  for  a  long  time 
prior  thereto  had  been  a  man  in  good  health,  and  sound  in 
limb  and  body,  and  for  many  years  prior  thereto  had  been 

in,  to  wit,  the  said  county,  engaged  in  the  business  of 

and  out  of  which  said  business  he  was  able  to  and  did  make 

large    gains    and   profits,    to   wit,    the    sum    of    

($ )  dollars  a  year;  and  plaintiff  avers  that  on  ac- 
count of  said  injuries  he  was  rendered  incapable  of  attend- 
ing to  and  carrying  on  said  business,  whereby  he  lost  great 


1084  ANNOTATED    FORMS   OF    PLEADING    AND    I'HACTICE 

gains  and  profits,  to  wit,  ($ )  dol- 
lars; and  he  was  otherwise  seriously  and  permanently  injured, 
and  was  obliged  to  and  did  pay  and  incur  other  large  sums 
of  money  for  nurses  to  take  care  of  him  wiiile  lie  was  sick,  to 
wit,  the  sum  of ($..,.)  dollars.    To  the  damage,  etc. 


For  that  whereas,  on,  to  wit,  the  ....  day  of , 

at,  to  wit,  the  city  of  ,  county  of  

and  state  of  Illinois,  the  defendant  was  a  corporation  duly 
organized  under  and  by  virtue  of  the  laws  of  the  state  of 
Illinois,  and  was  then  and  there  possessed  of  and  operating  a 

line  of  street  cars  in  the  said  city  of ,  county  and 

state  aforesaid,  for  reward;  that  on  tlie  day  and  year  afore- 
said said  defendant  by  and  through  its  servants  in  that  behalf 
was  possessed  of  and  was  running  a  certain  street  car  propelled 
by  electric  power,  south  upon  its  tracks  along  a  public  highway 

in  said  city,  called  ;  that  at,  etc.,  aforesaid,  she 

then  and  there  became  a  passenger  upon  said  street  car  of  the 
defendant  to  be  carried,  and  was  thereupon  accordingly  then 
carried  in  said  street  car  from,   to   wit,   the   intersection   of 

and to  the  intersection  of 

and  in   aforesaid, 

for  certain  reward  to  the  defendant  in  that  behalf;  that  she 
notified  the  servants  of  the  defendant  that  she  desired  to  alight 
from  said  street  car  at  

And  thereupon  it  became  and  was  the  duty  of  said  defend- 
ant, upon  the  arrival  of  said  street  car,  at  the  south  inter- 
section of   and    ,  aforesaid,  to  give 

the  plaintiff  the  opportunity  of  safely  alighting  therefrom,  and 
then  and  there  to  stop  the  said  street  car  a  reasonable  time 
to  enable  the  plaintiff  so  to  alight  therefrom  safely  as  afore- 
said; yet,  the  defendant  did  not  regard  its  duty,  or  use  due 
care  in  that  behalf,  but   on  the  contrary  thereof,   after  the 

said  street  car  reached  the  south  intersection  of 

and  had  sopped  at  said  place,  at  the  time  aforesaid,  and 
while  the  plaintiff  with  all  due  care,  caution  and  diligence  was 
then  and  there  in  the  act  of  alighting  therefrom,  the  defend- 
ant carelessly  and  negligently  caused  said  street  car  to  be 
suddenly  and  violently  started  and  moved,  and  thereby  the 
plaintiff  was  then  and  there  thrown  with  great  violence  from 
and  off  the  said  street  car  and  upon  the  ground. 

By  means  whereof  then  and  there  the  plaintiff  sustained  a 
fracture  of  the  femur  of  the  left  leg  which  caused  a  perma- 
nent injury  to  the  plaintiff,  and  she  thereby  has  permanently 
lost  the  use  of  said  leg ;  and  she  was  otherwise  greatly  bruised, 
hurt  and  wounded  and  divers  bones  of  her  body  were  then 
and  there  broken ;  and  she  became  and  was  sick,  sore,  lame  and 
disordered  and  so  remained  for  a  long  space  of  time,  to  wit 


PERSONAL   INJURIES  1085 

from  thence  hitherto ;  during  all  of  which  time,  she,  the  plain- 
tiff, suffered  great  pain  and  agony,  and  was  prevented  and 
hindered  from  attending  to  her  affairs  and  business;  and 
thereby  the  plaintiff  was  obliged  to  and  did  then  and  there 

lay  out  large  sums  of  money,  amounting  to  $ ,  in 

and  about  endeavoring  to  be  cured  of  said  injuries  so  received 
as  aforesaid. 
Wherefore,  etc. 

(Michigan) 

For  that  whereas  the  defendant,  before  and  at  the  time  of 
committing  the  grievance  hereinafter  mentioned,  controlled, 
managed  and  operated  a  certain  street  and  interurban  rail- 
road extending  from  its  station  in  the  city  of   

to  its  station  at in  said  county  of , 

and  beyond,  together  with  cars  running  thereon  for  the  pur- 
pose of  carrying  and  conveying  persons  and  passengers  in  said 

pars  from  its  said  station  in  the  said  city  of to 

its  station  at ,  and  beyond  for  a  certain  toll,  hire, 

and  reward  to  be  paid  to  the  said  defendant  therefor. 

And  thereupon,  heretofore,  to  wit,  on  the  ....  day  of , 

19.  .,  at  said  station  in  the  said  city  of ,  and  while  the 

said  defendant  so  controlled,  managed  and  operated  the  said 
railroad  and  cars  as  aforesaid,  the  plaintiff  entered  one  of  the 
said  cars  upon  said  railroad  and  became  and  was  a  passenger 
therein  to  be  carried  and  conveyed  by  the  said  defendant  upon 

the  said  railroad  from  its  said  station  in  the  city  of 

to  its  said  station  at aforesaid  safely  and  securely 

for  a  certain  toll,  hire,  and  reward  which  she,  the  said  plain- 
tiff paid  to  the  said  defendant  therefor,  and  the  said  defendant 
then  and  there  received  the  said  plaintiff  within  the  said  car  as 
such  passenger  to  be  carried  and  conveyed  as  aforesaid  and 
received  the  said  toll,  hire  and  reward  so  paid  therefor  by  the 
said  plaintiff  as  aforesaid. 

And  thereupon  it  then  and  there  became  and  was  the  duty 
of  the  said  defendant  to  safely  and  securely  carry  and  convey 
the  said  plaintiff  from   its  said  station  in  the   said   city   of 

to  its  said  station  at   aforesaid  in 

said  car;  and  upon  the  arrival  of  said  car  at  said  station  at 

aforesaid  to  stop  the  said  car  there  and  give  the 

said  plaintiff  reasonable  time  and  opportunity  while  exercising 
due  care  and  prudence  on  her  part  to  safely  and  securely  alight 
therefrom  to  the  ground;  and  to  so  control,  manage  and  ope- 
rate the  said  car  by  its  servants  and  employees  then  and  there 
in  charge  and  control  of  said  car  as  not  to  impel  and  throw  the 
said  plaintiff  from  the  said  car  to  the  ground  at  its  said  station 
at  aforesaid. 

Yet,  the  said  defendant  by  its  said  servants  and  employees 
who  were  then  and  there  in  charge  and  control  of  said  car  and 
acting  under  its  orders  and  direction  carelessly,  negligently 


1086  ANNOTATED   FORMS   OP   PLEADING   AND   PRACTICE 

wilfully  and  intentionally  disregarding  the  said  duties  of  said 
defendant  in  the  premises  then  and  there  upon  the  arrival  of 

said  car  at  the  said  station  at did  not  stop  said 

car  there  and  give  the  said  plaintiff  reasonable  time  and 
opportunity  while  exercising  due  care  and  prudence  on  her  part 
to  safely  and  securely  alight  therefrom  to  the  ground;  and 
did  not  so  control,  manage  and  operate  the  said  car  as  not  to 
impel  and  throw  the  said  plaintiti'  from  the  said  car  to  the 

ground  at  its  said  station  at aforesaid. 

But  the  said  defendant  by  its  said  servants  and  employees 
so  acting  as  aforesaid  upon  the  arrival  of  said  car  at  said 

station   at    aforesaid  and   as  the  said   car   was 

approaching  near  the  said  station  slackened  the  speed  of  said 
car  as  it  approached  the  said  station  and  then  aiid  tliere  at 
the  said  station,  while  th.e  said  plaintiff  with  all  due  care 
and  prudence  on  her  part  was  standing  within  the  said  car 
and  near  the  rear  doorway  thereof  through  which  it  was 
necessary  for  her  to  pass  in  order  to  reach  the  rear  platform 
of  said  car  and  the  ste])s  leading  therefrom  out  of  the  said 
car  to  the  ground,  and  while  the  said  plaintiff  with  all  due  care 
and  prudence  on  her  part  was  standing  there  near  the  said 
doorway  ready  to  pass  from  within  the  said  car  upon  and  over 
the  said  platform  and  steps  of  said  car  to  alight  from  the  said 
car  to  the  ground  should  the  said  car  be  stopped  at  the  said 
station  to  enable  her  to  safely  and  securely  alight  therefrom 
to  the  ground  there,  and  while  the  said  car  was  still  as  afore- 
said moving  slowly  along  there,  carelessly,  negligently,  wilfully 
and  intentionally  su(l(i«'nly  started  and  moved  the  said  car 
foi-ward  with  great,  unnecessary  and  unreasonable  force  and 
swiftness,  and  with  such  force  and  swiftness  as  to  impel  and 
throw  her,  the  said  plaintiff,  violently  and  swiftly  out  through 
the  said  rear  doorway  of  the  said  car  and  off  the  said  car 

to  and  upon  the  ground  there  at  the  said  station  at 

aforesaid  with  great  force  and  violence  and  against  the  will 
of  her,  the  said  plaintiff. 

And  the  said  plaintiff  avers  that  she  was  thereby  without 
fault  on  her  part  carelessly,  negligently,  wilfully,  intentionally 
and  suddenly  by  the  said  defendant  impelled  and  thrown  from 
within  the  said  ear  to  and  upon  the  ground  at  said  station  at 

•  •  • : aforesaid   with    great    force   and   violence    and 

against  her  will,  while  the  said  car  Avas  so  moving  there  as 
aforesaid. 

By  means  whereof  the  said  plaintiff,  who  was  theretofore 
sound  and  healthy  and  of  good  personal  appearance,  was 
greatly  hurt,  bruised,  sprained  and  otherwise  injured  in  her 
limbs  and  body.  And  the  internal  organs  of  the  said  plaintiff 
were  bruised,  sprained,  torn,  misplaced,  ruptured  and  lacer- 
ated, and  the  said  plaintiff  was  seriously,  incurably  and  per- 
rnanently  injured  internally.  And  the  veins  and  surroi^iuling 
tissues  in  the  left  leg  of  her,  the  said  plaintiff,  was  ruplured, 


PERSONAL   INJURIES  1087 

distended,  torn  and  lacerated,  and  the  said  veins  were  rendered 
varicose  and  incurable,  and  she,  the  said  plaintiff,  was  thereby 
seriously  and  permanently  injured  in  her  said  left  leg  and 
to  a  great  extent  has  lost  the  use  of  the  same.  And  the  eyes 
of  the  said  plaintiff  were  seriously  and  permanently  injured 
and  the  sight  thereof  greatly  dimmed  and  to  a  great  extent 
destroyed,  and  the  said  plaintiff*  will  lose  the  use  and  sight  of 
her  eyes  and  become  wholly  blind.  And  the  whole  nervous 
system  of  her,  the  said  plaintiff,  was  thereby,  and  on  account 
of  said  internal  injuries,  incurably  and  permanently  injured. 
And  the  said  plaintiff  became  and  from  thence  hitherto  has 
remained,  and  will  permanently  remain  pale,  worn,  ill  looking 
and  dejected  in  her  personal  appearance.  And  the  said  plain- 
tiff was  otherwise  hurt,  bruised,  and  injured  and  became  and 
from  thence  hitherto  has  remained  and  still  remains  sick,  sore, 
lame,  nervous,  and  disordered  and  has  suffered  great  pain  and 
is  still  suffering  great  pain  in  her  mind  and  body.  And  during 
all  the  time  since  she  Avas  so  injured  and  said  plaintiff  has 
been  and  still  is  by  means  of  the  said  premises  prevented  and 
hindered  from  transacting  and  attending  to  her  necessary  and 
lawful  affairs  and  business  during  all  that  time  to  be  by  her 
transacted  and  performed,  and  has  suffered  and  is  still  suffer- 
ing great  mental  and  physical  distress  and  hath  been  and  is 
much  injured  and  damnified.    To  the  damage,  etc. 

(Virginia) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the day 

of ,  19.  .,  and  at  divers  other  times  before  and  at  the 

time  of  the  commission  of  the  grievances  hereinafter  men- 
tioned,   the    said    and    were    the 

receivers  of  the  circuit  court  of  the  United  States  for  the 

district  of  Virginia,  in  the  suit  of 

company  v company,  et  als.,  and  as  such 

were  in  the  possession  of  and  were  the  operators  of  a  certain 
street  raihVay  in,  along  and  upon  the  streets  of  the  city  of 

,  and  also  of  certain  electric  cars  propelled  by 

electric  currents  as  the  motive  power  thereof,  which  the 
said  defendants  ran  and  operated  along,  over  and  upon 
the  said  street  railway  and  the  tracks  thereof,  and  which 
said  cars  the  said  defendants  operated  by  its  servants, 
agents,  and  employees,  called  conductors  and  motormen, 
and  the  said  defendants  became  and  were  in  the  operation  of 
said  cars  a  common  carrier  of  passengers  for  hire  and  reward, 
in  and  upon  said  electric  street  cars,  so  operated  upon  the 
streets  aforesaid. 

And  on  the  day  and  year  aforesaid,  the  said  plaintiff,  at  the 
special  instance  and  request  of  the  said  defendants,  boarded 
and  got  upon  one  of  the  said  cars,  which  was  in  the  custody, 
control  and  management  of  the  servants,  agents  and  employees 


1088  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

of  the  said  defendants,  to  wit,  a  certain  conductor  and  motor- 
man,  whose  names  are  to  plaintiff  unknown,  at  a  point  in  said 
city  on street,  and  desired  to  be  carried  and  con- 
veyed as  a  passenger  thereon  to  a  point  on  said 

street  near   street,  where  she  wished  to  alight, 

and  which  is  a  place  where  said  cars,  and  particularly  the  car 
aforesaid,  usually  stopped  to  take  on  and  let  off  passengers, 
and  said  plaintiff  paid  the  usual  fare  demanded  of  her  by  the 
defendants'  said  servants,  and  became  and  was  a  passenger 
as  aforesaid. 

And  thereupon  it  became  and  was  the  duty  of  the  said 
defendants  to  use  due  and  proper  care,  skill  and  diligence  in 
transporting  and  carrying  safely  the  said  plaintiff",  and  ui)on 
being  requested,  notified  or  signaled  so  to  do,  to  stop  its  said 
car  at  said  point  and  to  allow  the  said  plaintiff  sufficient  time 
to  safely  land  and  alight  from  the  said  car. 

Yet,  the  said  defendants,  not  regarding  their  duty  in  that 
behalf,  did  not  use  due  and  proper  care,  skill  and  diligence  for 
the  safe  carrying,  landing  and  alighting  aforesaid  of  the  said 
plaintiff,  but  wholly  neglected  the  same  and  with  gross  negli- 
gence and  in  utter  disregard  of  its  said  duty  to  the  said  plain- 
tiff, after  the  said  plaintiff  had  reciuested  the  conductor  to 
stop  said  car  at  said  point  and  the  usual  and  customary  signal 
had  been  given  to  stop  the  said  car  at  the  point  aforesaid,  the 
said  defendants,  by  their  said  agents,  caused  the  said  car  to 
be  slowed  up  for  the  purpose  of  stopping  at  said  point,  and 
after  having  stopped  the  said  car,  or  so  nearly  stopped  the 
same,  at  said  point  as  to  permit  the  plaintiff  to  alight  therefrom 
with  safety,  the  said  defendants,  by  their  said  agents,  negli- 
gently, carelessly  and  recklessly  started  the  said  car  off  and 
put  the  same  suddenly  in  rapid  motion,  to  the  surprise  of  the 
said  plaintiff,  without  any  warning  or  notice  to  her,  and  while 
she  was,  as  was  well  known  to  said  agents  in  charge  of  said 
car,  in  the  act  of  getting  ready  to  alight  from  the  same,  she, 
the  said  plaintiff,  having  then  and  there  risen  from  her  seat 
and  then  and  there  standing  in  said  car  waiting  for  the  same 
to  come  to  a  full  stop,  and  believing,  as  she  had  a  right  to 
believe,  that  the  same  was  about  to  come  to  a  full  stop,  she, 
the  said  plaintiff,  then  and  there  exercising  due  care  and 
caution  in  so  getting  ready  to  alight  from  said  car. 

And  the  plaintiff  avers  that  while  she  was  so  standing  in 
said  car,  by  reason  of  said  hasty,  sudden,  negligent  and  wrong- 
ful starting  of  said  car  and  putting  the  same  in  rapid  motion 
by  the  said  defendants,  by  their  said  servants,  agents  and 
employees,  without  giving  said  plaintiff  time  to  safely  alight 
and  land  from  said  car,  and  without  notice  to  her,  she,  without 
fault  on  her  part,  and  solely  by  reason  of  the  said  negligent 
acts  of  the  defendants,  was  thrown  suddenly,  precipitously  and 
violently  from  said  car,  so  wrongfully  and  negligently  put  in 
motion  as  aforesaid,  into  and  upon  the  said  street,  and  was 


PERSONAL   INJURIES  1089 

greatly  bruised,  wounded,  injured  and  hurt,  and  made  sick 
and  sore  in  and  upon  her  head,  back,  limbs,  etc.,  and  was  other- 
wise greatly  wounded,  injured  and  damaged  (the  said  plain- 
tiff being  then  and  there  three  months  gone  in  pregnancy,  and 
suffered  in  the  eighth  month  of  her  pregnancy  a  premature 
birth  of  a  child,  which  said  child  was  born  with  defective  vital 
organs  and  within  two  months  after  its  birth  died,  all  of 
which  was  directly  caused  by  and  came  about  by  reason  of 
said  negligence),  none  of  which  would  have  happened  but  for 
the  aforesaid  negligent  acts  of  said  defendants;  by  reason  of 
which  premises  the  said  plaintiff  has  suffered  great  pain  and 
has  been  ill,  sick  and  sore,  and  on  account  of  said  sickness 
and  injuries  has  been  forced  to  expend  large  sums  of  money  in 
and  about  endeavoring  to  be  cured  of  said  sickness  and  injuries, 
caused  as  aforesaid.    To  the  damage,  etc. 

1626  Sudden  starting  of  street  car,  boardingf,  Narr.  (HI.) 

For  that  whereas,  on,  to  wit,  the day  of , 

19 . . ,  in  the  county  aforesaid,  the  defendant  was  pos- 
sessed of  and  using  and  operating  a  certain  railroad  extend- 
ing through  a  part  of  the  city  of in  said  county, 

and  through  the  towns  of and  in 

said  county  and  other  parts  of  said  county,  with  certain  cars 
and  trains  of  cars  thereon,  for  the  conveyance  of  passengers 
for  reward;  and  on,  to  wit,  the  day  aforesaid,  in  the  county 
aforesaid,  the  defendant  was  a  carrier  of  passengers  for  hire 
in  and  by  certain  street  cars  which  said  defendant  pro- 
pelled along  and  upon  its  tracks  on  a  certain  street,  to  wit, 

street  so-called,  to  wit,  in  the  county  aforesaid. 

That  it  was  the  duty  of  said  defendant  for  hire  to  receive  and 
take  on  board  its  said  cars  persons  as  passengers ;  and  on,  to 
wit,  the  day  last  aforesaid,  a  certain  car  of  said  defendant  was 

passing  along  said  street,  to  wit,  said street,  so 

called,  for  the  carriage  of  passengers  therein,  and  said  plain- 
tiff signaled  to  the  servants  of  said  defendant  who  had  charge 
of  said  car  to  receive  said  plaintiff  as  a  passenger  on  said 
car,  and  said  servants  of  said  defendant  in  response  to  said 
signal  checked  the  speed  of  said  car  to  a  point  where  it  was 
safe  for  said  plaintiff  to  get  upon  said  car  and  become  a  pas- 
senger thereon ;  and  said  servants  of  said  defendant  thereupon 
invited  said  plaintiff  to  get  upon  said  car  while  it  was  so  in 
motion;  and  thereupon  said  plaintiff  then  and  there,  without 
fault  or  negligence  on  his  part,  attempted  to  get  upon  said 
car  and  could  have  and  would  have  safely  got  upon  the  same 
if  the  speed  of  said  car  had  not  been  increased,  and  it  was  the 
duty  of  said  defendant  not  to  increase  the  speed  of  said  car 
until  said  plaintiff  had  got  upon  said  car ;  but  said  defendant, 
not  mindful  of  its  duty  in  that  regard,  carelessly  and  negli- 


1090  ANNOTATED   FORMS  OP   PLEADING    AND   PRACTICE 

gently  and  wilfully  and  purposely,  while  said  plaintiff  was, 
without  fault  or  negligence  on  his  part  so  in  the  act  of  getting 
upon  said  ear,  started  said  ear  forward  suddenly  and  vio- 
lently at  a  much  higher  rate  of  speed  than  the  same  was  going 
when  the  plaintiff  started  to  get  upon  said  car;  and  thereby 
then  and  there,  by  the  sudden  moving  of  said  ear  forward, 
threw  said  plaintiff,  without  fault  or  negligence  on  the  part 
of  the  plaintiff,  to  and  upon  the  ground  there  and  dragged  the 

plaintiff  a  great  distance,  to  wit,   feet,  and  greatly 

bruised,  mangled  and  injured  the  plaintiff  so  that  his  life 
v/as  thereby  then  and  there  greatly  des'paired  of;  and  thereby 
then  and  there  the  right  hand  of  plaintiff  was  crushed,  broken 
and  cut  off;  and  thereby  then  and  there  the  right  arm  of 
plaintiff  was  bruised,  crushed,  broken  and  wounded.  By  means 
of  which  said  several  premises  the  plaintiff*  became,  has  ever 
since  been,  and  will  permanently  remain  in  the  future,  sick, 
sore,  lame,  disordered  and  weak  and  unable  to  work  and  carry 
on  his  business  and  affairs;  and  whereby  his  whole  body  was 
seriously  shocked,  bruised  and  lamed  and  his  clothing  torn 
and  destroyed ;  and  whereby  also  he  was  mentally  frightened 
and  shocked;  and  the  plaintiff  has  suff'ered  great  and  excruciat- 
ing pain,  and  will  permanently  in  the  future  suffer  such  pain. 
And  thereby  then  and  there,  by  means  thereof,  the  plaintiff 
became  and  was  unable  to  work  and  carry  on  his  special  trade 
of  cabinet  maker,  and  from  thence  hitherto  has  been  unable 
to  carry  on  his  said  trade  and  will  be  permanently  so  pre- 
vented in  the  future.  And  also  by  reason  of  the  premises  the 
plaintiff  has  been  and  is  otherwise  greatly  injured  and  dam- 
aged, to  wit,  at  the  county  aforesaid.    To  the  damage,  etc. 


For  that  whereas  the  defendant,  S,  a  corporation,  heretofore, 

on,  to  wit,  the day  of ,  19. .,  at,  to  wit,  the 

county  and  state  aforesaid,  was  the  owner  of  a  certain  street 
railway  in,  and  upon  and  along  a  certain  street  known  as  R 

street,  in  the  city  of ,  county  and  state  aforesaid, 

and  being  so  the  owner  of  said  street  railway,  on,  to  wit,  the 
day  aforesaid,  at,  to  wit,  the  place  aforesaid,  said  defendant 
last  named  suffered  and  allowed  the  defendant,  D,  a  corpora- 
tion, to  maintain  and  operate  certain  cars  for  the  conveyance 
of  passengers  for  reward  to  the  said  defendant,  D,  upon  and 
along  said  street  railway  as  aforesaid. 

And  the  plaintiff  avers  that,  on,  to  wit,  the  day  aforesaid,  at, 
to  wit,  the  intersection  of  P  avenue  with  said  R  street  in  said 

city  of ,  and  upon  which  said  defendant  D  main- 

tained  and  operated  said  street  railway,  and  its  said  cars 
thereon  as  aforesaid,  the  plaintiff  attempted  to  become  a  pas- 
senger and  to  board  one  of  the  cars  of  the  defendant,  D,  so 
operated  as  aforesaid,  which  said  car  was  then  stationary  at 


PERSON.VL   INJURIES  1091 

the  said  intersection  of  P  avenue  and  R  street  for  the  pur- 
pose of  receiving  passengers;  thereupon  it  became  and  was 
the  duty  of  the  defendant,  D,  to  afford  the  said  plaintiff  a  rea- 
sonable opportunity  to  board  said  car  as  aforesaid  in  safety; 
but  the  plaintiff  avers  that  the  defendant  did  not  regard  its 
duty  in  that  behalf,  and  did  carelessly  and  negligently  cause 
the  said  car  which  the  said  plaintiff,  who  was  then  and  there 
exercising  all  due  care  and  caution  for  her  own  safety,  was 
then  and  there  in  the  act  of  boarding,  to  be  suddenly  and  vio- 
lently started  and  moved,  thereby  causing  the  plaintiff  to  be 
thrown  with  great  force  and  violence  upon  and  against  the 
side  of  said  car  and  then  and  there  injured. 

By  means  of  the  committing  of  the  said  injury  by  the  defend- 
ant, D,  to  the  said  plaintiff  as  aforesaid,  then  and  there  the 
spine  and  nervous  system  of  the  said  plaintiff  was  bruised, 
hurt,  shocked  and  wounded  and  certain  of  her  pelvic  and 
abdominal  viscera  were  deranged  and  injured,  all  of  which 
shock,  bruise,  derangement  and  injury  were  then  and  there 
permanent  to  the  plaintiff;  and  the  plaintiff  was  otherwise 
greatly  bruised,  hurt,  shocked  and  wounded;  by  means 
whereof  the  plaintiff  was  obliged  to  and  did  then  and  there 
lay  out  divers  sums  of  money,  amounting  all  to,  to  wit,  the 
sum  of ($ )  dollars,  in  and  about  endeavor- 
ing to  be  cured  of  said  injury  so  received  as  aforesaid ;  and  also 
by  reason  of  the  premises,  the  plaintiff  then  and  there  became 
and  was  sick,  lame  and  disordered  and  so  remained  for  a  long 
time,  to  wit,  from  thence  hitherto,  during  all  of  which  time 
the  plaintiff'  suffered  great  pain  and  agony  and  was  and  is 
hindered  and  prevented  from  transacting  and  attending  to  her 
business  and  affairs,  and  lost  and  was  deprived  of  divers  great 
gains  and  profits  which  she  might  and  otherwise  would  have 
made  and  acquired.    Wherefore,  etc. 

1627  Sudden  stopping  of  street  car,  Narr.  (Mich.) 

For  that  whereas,  the  defendant,  on  or  about  the  

day  of   ,  19..,  at  the  city  of   ,  in  the 

county  of  ,  and  state  of  Michigan,  was  a  street 

railway  corporation,  owning  and  operating  a  certain  system 
of   city    and    suburban    electric    railway,    among   which   was 

what  is  commonly  known  as  the    avenue  line, 

avenue   line,    crosstown   line    and   many   other 

lines,  having  its  principal  office  at  number   

avenue    in    the    city    of     ,    in    the    county    of 

aforesaid,  and  having  many  other  lines  of  rail- 
way in  the   city   of    ,   and  suburban   lines,   and 

operating  cars  propelled  by  electric  power  on  all  of  its  said 
lines  and  systems  of  electric  railway,  for  the  purpose  of  car- 
rying and  conveying  passengers  to  and  from  place  to  place 
in  said  city  of  ,  and  also  between  the  cities, 


1092  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

villages  and  hamlets  on  its  said  suburban  lines,  for  certain 
reward,  all  of  which  of  its  said  cars  were  in  the  charge  of 
its  servants  and  agents,  and  the  said  defendant  was  then  and 
there,  at  said  city  of ,  by  said ave- 
nue line  and  other  lines  a  common  carrier  of  passengers  for 

reward,  the  said avenue  line  commenced  at  the 

city  limits  on   avenue  and  extended  southerly 

on  avenue,  next  easterly  on  ave- 
nue, westerly  on ,  then  southerly  on 

street,  and  run  and  extended  over  many  other  lines  of  street 
railway,  among  which  were avenue, , 

, ,   ,    and 

other  streets  and  avenues. 

And  the  plaintiff  avers  that  on  the  day  and  date  afore- 
said at  the  city  of  aforesaid,  and  at  the  inter- 
section of  street  and  said  avenue 

in  said  city  of ,  at  the  special  instance  and  request 

of  the  said  defendant,  she  became  and  was  a  passenger  on 
one  of  the  certain  electric  cars  of  the  said  defendant,  on  what 
was  commonly  known  as  the avenue  line  afore- 
said, and  which  said  car  was  then  and  there  being  propelled 
and   operated   by   the   servants   of   the   said    defendant   in   a 

southerly  direction  on  said avenue  or  street,  to 

be  carried  in  a  southerly  direction  toward  the  city  hall ;  and 
the  said  plaintiff  then  and  there  for  certain  reward  was 
received  as  a  passenger  and  entered  upon  said  car  to  be  trans- 
ported in  a  southerly  direction  as  aforesaid,  for  certain  reward 
then  and  there  by  her  to  the  said  defendant  duly  paid. 

And  the  plaintiff  avers  that  by  reason  of  the  premises  it  then 
and  there  became  the  duty  of  the  said  defendant,  by  its 
said  servants  in  charge  of  said  car,  to  use  due  care,  diligence, 
vigilance  and  skill  in  operating  said  car  upon  which  plain- 
tiff was  a  passenger,  and  to  safely  carry  and  convey  the  said 
plaintiff  from  said avenue  southerly  to  her  des- 
tination, and  to  safely  deliver  her  at  the  end  of  her  journey; 
and  the  plaintiff'  further  avers  that  said  car  had  its  aisle  on  the 
right  hand  side  of  the  car,  and  long  seats  extending  to  the 
left  across  the  car;  that  when  she  entered  the  car  as  a  pas- 
senger the  seats  were  all  filled  and  many  passengers  were 
standing  in  the  aisle  of  said  car,  and  the  plaintiff  and  her 
companions  were  obliged  to  stand  also;  that  the  railway 
tracks  of  the  said  defendant  at  said  place  and  between  said 

avenue    and    avenue    were    very 

much  out  of  repair  and  very  rough  and  uneven,  and  the  car 
rocked  to  and  fro  violently  while  she  was  obliged  to  stand  up 
therein,  and  she  found  great  difficulty  in  remaining  upon  her 
feet  while  said  car  was  in  motion ;  and  therefore,  by  reason 
of  the  premises,  she  charges  that  it  was  the  further  duty  of  the 
defendant,  by  its  servants,  to  exercise  additional  care  and 
precaution  in  operating  said  car  and  in  starting  and  stopping 


PERSONAL   INJURIES  1093 

the  same,  and  to  desist  and  refrain  from  operating  said  car 
with  great  speed,  or  starting  and  stopping  the  same  very  sud- 
denly, and  with  great  force  and  violence. 

Yet,  the  said  defendant,  by  its  servants,  did  not  regard  said 
duty  or  duties,  or  any  or  either  of  the  same,  and  wholly  dis- 
regarded each  and  every  of  the  same,  and  did  not  use  due 
care,  vigilance,  diligence,  caution  and  skill  in  operating  and 
running  said  car  upon  which  plaintiff  was  a  passenger,  but 
carelessly,  recklessly  and  negligently  ran  and  operated  said 
car  with  great  speed;  and  the  servants  of  the  said  defendant 
so  in  charge  and  management  of  said  car,  for  and  on  behalf 
of  said  defendant,  while  in  the  employ  of  said  defendant,  and 
while  acting  within  the  scope  of  their  employment,  so  care- 
lessly, wantonly,  recklessly  and  negligently  managed  and 
operated  said  car  upon  which  plaintilf  was  a  passenger,  and 

so  suddenly  stopped,  the  same,  at  avenue,  that 

plaintiff  was  thrown  off  her  equilibrium  and  off  her  feet 
and  struck  her  body  in  manner  aforesaid,  and  was  injured  as 
hereinafter  more  fully  set  forth. 

And  the  plaintiff  avers  that  by  reason  of  the  premises 
and  in  consequence  of  the  condition  of  the  track,  the  condi- 
tion of  the  car,  the  speed  with  which  the  car  was  operated, 
and  the  violence  and  suddenness  with  Avhich  it  was  stopped, 
by  the  servants  of  the  said  defendant,  the  plaintiff  was  thrown 
against  the  car,  seats  and  other  obstructions  and  other  pas- 
sengers, and  thereby  and  therefrom  received  a  most  severe 
physical  shock  and  a  severe  and  violent  nervous  shock,  that 
the  left  side  of  her  body  just  below  the  left  breast  struck 
against  the  corner  of  the  seat  or  back  of  the  seat,  fracturing 
two  or  three  ribs,  bruised  her  breast,  dislocated  the  thumb  of 
her  right  hand,  injuring  the  same  permanently,  and  also  in- 
flicting other  injuries  upon  the  breast  and  spine,  and  nervous 
sj^stem  from  which  plaintiff  has  since  continually  suffered 
pains  in  the  back,  and  in  her  head;  and  the  plaintiff'  in  conse- 
quence of  said  injuries  became,  and  still  is  and  will  in  the 
future  be  sick,  sore,  lame  and  disordered,  and  an  invalid, 
although  she  had  prior  to  the  time  of  the  receipt  of  said 
injuries,  been  a  strong,  healthy  woman,  and  was  able  to  do 
all  of  her  own  work. 

And  the  plaintiff  further  says  that  she  was  at  the  time  in  a 
pregnant  condition,  and  that  said  physical  and  nervous 
shock  brought  upon  her  premature  pain  and  premature  birth 
of  a  child,  causing  her  to  suffer  much  additional  pain  on 
account  of  the  matters  last  aforesaid,  and  in  consequence 
thereof,  she  became  sick,  sore  and  disordered  and  so  con- 
tinued to  be  and  remain  from  thence  hitherto,  and  is  unable 
to  state  when  she  wuU  recover  from  the  consequence  and  effects 
thereof. 

And  the  plaintiff  avers  that  the  injuries  to  her  thumb,  spme, 
side,  back  and  nervous  system  are  of  a  permanent  character, 


1094  ANNOTATED   FORMS   OF   PLEADING   AND    PRACTICE 

that  she  has  suffered  much  pain  and  distress,  physical  and 
mental  from  said  time  to  date,  and  still  suffers  and  must  in  the 
future  suffer  like  pain  and  like  disability,  and  that  she  has 
been  otherwise  greatly  damaged  and  injured.  To  her  damage, 
etc. 

1628  Switch  defective,  Narr.  (D.  C.) 

For  that  whereas,  heretofore,  to  wit,  at  the  time  of  the  com- 
mitting of  the  grievances  hereinafter  mentioned,  each  of  said 
defendants  was  engaged  in  business  in  the  District  of  Colum- 
bia as  a  common  carrier,  and  as  such  common  carriers  said 
defendants    occupied    and    used    certain    railroad    tracks    on 

street  northwest,  and    avenue,  in 

the  city  of ,  District  of  Columbia,  and  operated 

on  and  over  said  tracks  certain  steam  locomotives  and  rail- 
way cars  for  the  carriage  of  passengers;  and  whereas,   on, 

to  wit,  the   day  of   ,  the  said   

was  a  locomotive  engineer  in  the  employ  of  the  defendant 

,  and  as  such  engineer  under  such  employment 

was  in  and  upon  and  was  in  charge  of  a  locomotive  belong- 
ing to  said  ,  which  said  locomotive  was  propell- 
ing a  train  of  passenger  cars   from   the  railway   station   in 

the    city   of    ,    District   of   Columbia,    known    as 

street     station     southwardly     and     on     said 

street   northwest   to    avenue   and 

thence  by  means  of  a  switch  and  its  appurtenances  forming 

a  part  of  said  track  turning  into  said    avenue 

southwardly  toward  the   river. 

It  thereupon  became  and  then  and  there  was  the  duty  of 
the  defendants,  and  each  of  thera,  to  keep  said  tracks  and 
switch  and  their  appurtenances  in  good  and  safe  repair  and 
condition;  but  the  defendants  and  each  of  them  neglected 
their  duty  in  that  behalf,  in  conse(iuence  whereof  and  while 

said was  so  engaged  in  his  said  employment  the 

locomotive  of  which  he  was  then  and  there  in  charge  as  afore- 
said was  derailed  and  overturned  at  or  near  the  intersection 

of  said street,  northwest  and  the  said 

avenue,  whereby  said was  then  and  there  griev- 
ously injured ;  of  which  injuries  said thereafter, 

to  wit,  on  the  same  day  died. 

And  the  plaintiff  avers  that  said  engine  was  so  overturned 

and    said    was    so    killed    while    he,    the    said 

was  exercising  due  care  and  diligence  on  his  part, 

and  in  consequence  solely  of  the  negligence  of  the  defendants, 
and  each  of  them,  in  failing  to  maintain  in  good  and  safe 
repair  and  condition  said  switch  and  its  appurtenances  in 
this,  that  a  certain  guard-rail  which  formed  a  part  of  said 
switch  and  its  appurtenances  had  become  so  worn  from  long 
continued  use  and  was  so  insecurely  fastened  in  place  where  it 


PERSONAL  INJURIES  1095 

was  located  that  it  could  not  and  did  not  perform  its  proper 
function  while  said  locomotive  was  so  passing  over  said 
sS  and  also  in  this,  that  said  track  and  switch  and  their 
respective   appurtenances  were   otherwise  m   an  unsafe   and 

improper  condition.  ,    ,  ,■■         • -i  whpn  he 

And  the  plaintiff  avers  that  the  said  ....... .....  ^T^^^^Jf 

was   so    killed    left    him    surviving    a   widow    and    children, 

vears  of  age,  all  of  whom  are  still  liymg. 
"And 'the  plaintiff  further  avers  that  thereafter,  to  wit,  on 

thf.    ..    ..'    day   of    ..,  .the  plaintiff  was   appomted 

administrator  of  the  estate  of  said hv  the  court 

the  place  of  the  domicile  of  said  ,  and  that  The 

of  .in  the  state  of   •  ;  and  tnat  tne 

plaintiff  immediately  thereafter  duly  ^^^^^^^^  .^^^^^^jfeHs 
istrator  and  entered  upon  the  performance  of  his  duties  as 

"""in  consequence  of  all  and  singular  the  premises  the  said 
widow  and  children  of  said deceased  have  sus- 
tained a  pecuniary  injury  from  his  death  to  the  amount  of 
tamed       pecu        y^J^^^^  ^^^  ^^^^^  t^,  statute  m  such  cases 

made' and  provided  an  action  has  accrued  to  the  plaintiff  as 
TdminSrator  as  aforesaid,  against  the  defendants  and  each 
of  Them   to  recover  from  them,  and  each  of  them,  the  sum  of 
dollars.    Wherefore,  etc. 

1629  Switching,  statute,  violation 

A  statutory  provision  requiring  an  engineer  who  approaches 
with  a  train  a  crossing  of  two  or  more  railroads  to  make  a  full 
stop,  has  no  application  to  switching-yards  belonging  to  the 
same  railroad  company.^^^ 

1630  Switching,  negligent,  Narr.  (HI.) 

For  that  whereas  the  said  defendant  •  •  •  • ' '  i; '  *  i::.i\f 
railroad  company  organized  under  the  laws  of  the  state  of 

Illinois  and  is  a  common  carrier  and  on,  to  wit,  tne  •••••••• 

llmoisanaisa      ^^        ^^^  ^^^  ^  ^^^^  ^^^^^  pnor  thereto, 

^r;  in  f:S;ra  .est...  '^^^^^^tJ^i^- 

^ffi'r^   ai^d    wherts      a^lso     the     said    railway     eompany, 
defenlant    ont:  d?y  aforesaid  and  for  a  long  t.me  pnor 

239  St  Louis  National  Stock  Yards 
v.Godf;ey,  198  111.  288,292(1902); 
Par    75,  c.  lU,  Kurd's  Stat.  1909. 


1096  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

thereto  owned  and  possessed  and  used  and  operated,  main- 
tained and  controlled  a  certain  switch  track  or  switch  tracks 
connecting  with  and  adjoining  to  the  said  main  tracks  of  the 
said  railway  company,  the  defendant,  at  a  point  about 
south  of  the  factory  premises  of  the  W,  located  in  the  city  of 

aforesaid,   which   said   switch    tracks   ran   in   a 

northerly  direction  from  the  said  main  tracks  into  and  upon 
said  factory  premises  of  the  said  W  wliich  said  switch  track 
or  switch  tracks  were  on  the  day  aforesaid,  and  for  a  lout? 
time  prior  thereto,  used,  operated,  controlled  and  maintained 
by  the  defendant  railway  company  for  the  purpose  of  hauling, 
transferring  and  conveying  loaded  and  empty  box  cars  and 
freight  cars  owned  by  the  defendant  railway  company  into 
and  from  the  said  factory  premises  of  the  said  W  by  divers 
locomotive  engines,  owned,  operated  and  controlled  by  the 
defendant  railway  company  and  under  the  care  and  manage- 
ment of  then  divers  servants  of  the  said  railway  company; 
and  whereas,  also,  the  said  defendant  railway  company  was 
authorized  and  licensed  on  the  day  aforesaid  and  for  a  long 
time  prior  thereto  by  the  said  defendant  W  to  place  and 
maintain  the  aforesaid  switch  tracks  on  its  said  factory  i)rein- 
ises  and  to  run,  operate  and  haul  its  cars  over,  aloiij^  and  upon 
said  switch  tracks  upon  said  factory  premises  for  the  ])urpose 
of  switching  coal  cars  in  and  to  the  cement  works  of  the  said 
defendant  W  and  for  the  further  purpose  of  hauling  in  its 
said  cars  from  the  said  cement  plant  of  the  said  defendant  AV 
its  manufactured  cement  products,  and  for  other  purposes. 

And  whereas,  on  the  day  aforesaid,  and  for  a  loufj:  time  i)rior 
thereto,  the  said  switch  tracks  of  the  said  defeiulant  railway 
company,  so  running  into  and  upon  the  said  factory  premises 

at  and  from  a  point  about,  to  wit, feet  north  of  the 

said  main  tracks  of  the  defendant  railway  company,  consisted 
of  two  tracks  or  double  tracks  which  run  practically  north  and 
south  and  parallel  to  and  in  close  proximity  to  each  other,  to 

wit,  about feet  apart ;  the  more  westerly  of  the  said 

switch  tracks  being  laid  and  located  close  to  and  near,  and  on 
the  east  side  of,  the  certain  cement  warehouse  then  and  there 
being  used  by  the  said  W  for  the  purpose  of  storing  and 
loading  cement  and  the  said  freight  cars  or  box  cars  of  the 
defendant  railway  company  when  being  filled  and  loaded  with 
the  product  of  the  said  W,  preparatory  to  shipping  the  same, 
were  backed  or  shoved  in  and  upon  the  said  more  westerly 
switch  track,  all  of  which  facts  were  well  known,  or  by  the 
exercise  of  due  and  reasonable  care  could  have  and  would 
have  been  known,  to  the  said  railway  company,  defendant. 

And  whereas  the  defendant  W  on  the  day  and  year  afore- 
said, and  for  a  long  time  prior  thereto,  was  the  owner  and 
operator  of  a  certain  manufacturing  plant  fully  equipped  for 
the  manufacture  of  Portland  cement,  in  the  county  and  state 
aforesaid,  and  in  active  operation,  and  employed  in  and  about 


PERSONAL   INJURIES  1097 

its  said  factory  plant  in  the  operation  thereof  more  than 

men ;  and  in  the  line  of  their  employment  and  in  the  perform- 
ance of  their  duties  in  and  about  said  factory  and  in  and 
about  said  factory  premises,  said  men  were  compelled  to,  and 
did,  on  the  day  aforesaid,  and  for  a  long  time  prior  thereto, 
work  in  and  about  the  said  cement  warehouse,  and  the  said 
switch  tracks  of  the  defendant  railway  company,  all  located 
as  aforesaid,  all  of  which  was  well  known  to  the  railway  com- 
l)any,  or  by  the  exercise  of  due  and  reasonable  care  could  and 
would  have  been  known  to  the  said  railway  company.  And 
whereas,  on  said  day  and  year,  and  for  a  long  time  prior 
thereto,  the  plaintiff  was  in  the  employ  of  the  defendant  W 
as  a  common  laborer  in  and  about  its  said  plant,  and  by  virtue 
of  said  employment  it  became  and  was  the  duty  of  the  plaintiff 
to  perform  such  manual  labor  as  he  might  be  directed  or 
instructed  to  do  b}'  the  said  defendant  W;  and  whereas,  the 
said  defendant  AV,  on  the  day  aforesaid,  had  and  used  at  its 
said  plant  the  said  building  known  as,  and  commonly  called, 
a  warehouse  for  the  storage  of  cement ;  and  whereas  said  W 
used  in  connection  with  its  said  plant  and  located  on  its  said 
factory  premises  the  aforesaid  railroad  tracks  or  switch  tracks 
connecting  with  the  main  railroad  tracks  of  the  defendant 
railway  company,  and  leading  away  therefrom,  into  and  upon 
the  said  factory  premises  of  the  said  defendant  W  to  and 
along  the  east  side  of  the  said  cement  warehouse  and  to  other 
parts  of  the  said  factory  premises. 

And  whereas,  the  plaintiff,  while  in  the  line  of  his  duties, 

was  instructed  by  one  ,  the  foreman  of  the  said 

defendant  W  on  the  day  aforesaid,  and  while  it  was  dark 
or  dusk,  together  with  certain  other  laborers  of  said  cement 
plant,  to  move,  shove  or  push  to  one  of  the  doors  of  the  said 
cement  warehouse  for  the  purpose  of  loading  said  car  with 
cement,  an  empty  railroad  car,  which  car  was  standing  on  one 
of  said  switch  tracks  on  the  premises  of  said  cement  plant,  a 
short  distance  away  from  the  said  door  of  said  cement  ware- 
house, which  said  fact  the  railway  company  well  knew,  or 
by  the  exercise  of  due  and  proper  care  and  caution  could  have 
and  would  have  known. 

And  whereas,  the  plaintiff  did,  pursuant  to  the  orders  of  the 
said  ,  the  foreman  of  said  defendant  W  in  con- 
junction with  certain  other  laboring  men  of  the  defendant  W 
move,  shove  or  push  said  railroad  car  which  had  been  standing 
as  aforesaid  on  one  of  said  switch  tracks  to  one  of  the  doors 
of  said  warehouse  while  the  machinery  of  the  factory  was 
in  motion  and  making  a  great  noise;  and  it  was  then  and 
there  the  duty  of  the  plaintiff  to  hold  said  empty  car  at  said 
warehouse  door  until  the  other  said  employees  who  were 
working  with  the  plaintiff,  as  aforesaid,  would  have  blocked 
the  wheels  of  said  car  to  hold  the  car  stationary  while  said 
car  would  be  filled  with  said  cement  product. 


1098  ANNOTATED   FORMS  OF   PLEADING   AND    PRACTICE 

And  the  plaintiff  avers  that  it  then  and  there  became  and 
was  the  duty  of  the  said  railway  company  to  so  use,  operate 
and  control  the  said  east  switch  truck,  which  was  parallel 
with  and  in  close  proximity  to,  the  said  west  SAvitch  track  in 
and  about  which  the  plaintiff  was  at  work,  as  aforesaid,  so 
as  to  avoid  injury  to  the  plaintiff"  and  to  haul,  transport  and 
switch  its  said  freight  cars  or  box  cars  over,  along  and  upon 
the  said  east  switch  track  with  reasonable  care  and  caution 
so  as  to  avoid  injury  to  the  plaintiff'  and  to  that  end  then  and 
there  have  upon  said  cars,  so  being  hauled,  transported  or 
switched  over  said  east  switch  track,  a  competent  and  careful 
person  to  guide  and  regulate  the  speed  thereof  and  to  give 
warning  of  the  approach  of  the  same ;  yet,  disregarding  its  duty 
in  that  behalf,  the  said  railway  company  on  the  day  aforesaid, 
then  and  there,  at  the  place  aforesaid,  carelessly,  negligently 
and  recklessly  switched,  backed,  shoved  or  pushed  a  certain 
coal  car,  heavily  loaded  with  coal,  which  was  then  and  there 
the  property  of  the  defendant  railway  company,  and  under 
the  control  and  management  of  its  then  servants,  who  were 
not  fellow-servants  of  the  plaintiff,  in,  along,  upon  and  over 
the  said  east  switch  track  so  located  as  aforesaid,  at  a  high 
and  excessive  rate  of  speed  and  at  a  time  when  it  was  dark 
or  dusk  and  the  machinery  of  the  said  cement  works  was  in 
full  operation  and  making  a  great  and  loud  noise,  with  no 
competent  person  or  anyone  upon  the  said  coal  ear  so  heavily 
loaded  with  coal,  to  guide  the  same  or  regulate  the  speed 
thereof  or  to  give  warning  of  the  approach  of  the  same;  by 
means  whereof,  and  on  account  of  the  negligent,  careless  and 
reckless  conduct  of  the  said  railway  company,  the  plaintiff, 
who  was  then  and  there  working  in  the  line  of  his  employ- 
ment and  while  in  the  act  of  moving  away  from  the  said 
freight  car  so  being  placed  or  "spotted"  by  him  as  aforesaid, 
and  while  exercising  due  care  and  caution  for  his  own  safety, 
was  thereupon  struck  by  said  heavily  loaded  coal  car  of  said 
railway  company  and  knocked  and  felled  to  and  upon  the 
ground  there ;  and  the  plaintiff  avers  that  at  the  time  that  he 
was  struck,  as  aforesaid,  he  did  not  know  that  the  said  moving 
coal  car  was  upon  the  said  east  s\vitch  track  nor  could  he 
have  discovered  the  said  moving  coal  car  by  reasonable  care 
on  his  part  in  time  to  avoid  being  struck  by  the  same;  and 
then  and  there  plaintiff  was,  by  reason  thereof,  severely 
bruised,  and  lacerated  and  severely  injured  as  hereinafter 
alleged. 

2.  It  thereupon  also  became  and  was  the  duty  of  "W,  one 
of  the  said  defendants,  to  furnish  the  plaintiff  a  reasonably 
safe  place  in  which  to  do  his  work  and  to  furnish  lights,  and 
to  properly  light  the  place  where  said  plaintiff  was  working; 
and  it  was  then  and  there  the  duty  of  the  said  defendant  W, 
to  require  and  take  care  that  the  said  railway  company,  the 


PERSONAL  INJURIES  1099 

other  of  said  defendants,  would  exercise  reasonable  care  in 
moving  its  cars  on  said  switch  tracks,  and  to  have  competent 
persons  in  charge  of  its  cars  while  moving  same  on  said 
switch  tracks,  and  to  place  a  light  when  it  was  dark  upon 
the  front  end  of  its  cars  while  moving  over  said  switch 
tracks,  and  to  warn  said  plaintiff  of  the  approach  of  said 
cars  while  moving  or  switching  the  same ;  and  it  was  the  duty 
also  of  the  defendant  railway  company  to  exercise  reasonable 
care  in  moving  and  switching  its  said  cars  on  said  switch 
tracks  and  to  have  competent  persons  in  charge  of  its  cars 
while  moving  and  switching  same  on  said  switch  tracks,  and 
to  have  lights  on  the  front  end  of  its  cars  while  moving  on 
said  switch  tracks  when  it  was  dark,  and  to  warn  said  plain- 
tiff of  the  approach  of  its  said  cars;  yet,  wholly  regardless 
of  their  duties  in  that  respect,  the  said  defendants  while  the 
said  plaintiff  was  in  the  line  of  his  duty  after  having  assisted 
in  moving  said  car  and  holding  said  car  as  aforesaid,  and 
while  about  to  move  away  from  said  car  after  holding  same 
for  the  purpose  of  blocking  as  aforesaid,  at  the  time  afore- 
said, negligently  and  carelessly  pushed,  shoved  and  moved 
a  car  heavily  loaded  with  coal  down,  along  and  upon  a  certain 
switch  track  running  parallel  with  and  close  to  the  said  switch 
track  upon  which  said  plaintiff  was  working  as  aforesaid, 
without  any  person  in  charge  of  said  moving  loaded  car  and 
without  a  head-light  on  said  moving  loaded  car,  and  without  any 
lights  in  the  place  where  plaintiff  was  working,  although  it  was 
dark  or  dusk  there,  and  without  giving  the  plaintiff  any  warn- 
ing of  the  approach  of  said  loaded  car,  and  while  the  plaintiff 
was  working  in  the  line  of  his  duty  as  aforesaid,  pursuant  to 
orders  given  by  the  said  foreman,  under  the  control,  guidance 
and  direction  of  the  W,  defendant,  and  while  in  the  act 
of  moving  away  from  said  empty  car  which  he  had  been 
holding  for  the  purpose  of  blocking,  and  while  exercising  due 
care  and  caution  for  his  own  safety,  said  coal  car  heavily  loaded 
with  coal,  then  and  there  struck  the  plaintiff  upon  his  back 
and  right  side  and  felled  him  to  and  upon  the  ground;  and 
the  plaintiff  avers  that  at  the  time  he  was  struck  as  afore- 
said, he  did  not  know  that  there  was  any  moving  car  on  said 
switch  tracks,  nor  was  he  informed  of  any  moving  car  by  anyone 
on  behalf  of  either  of  the  defendants,  nor  could  he  have  dis- 
covered the  said  moving  car  which  struck  him  as  aforesaid,  by 
exercising  reasonable  care  at  the  time  aforesaid,  in  time  to 
avoid  being  struck,  as  aforesaid. 

And  then  and  there  the  plaintiff  was  by  reason  thereof 
seriously  and  permanently  injured,  and  by  reason  thereof  his 
lungs,  spinal  column,  kidneys  and  intestines  were  severely 
injured,  and  he  was  bruised  and  lacerated,  by  reason  whereof 
he  became  and  was  affected  with  traumatic  pleurisy,  as  a 
direct  result  thereof,  and  thereby  the  plaintiff  was  compelled 
to  and  did  lay  out  divers  large  sums  of  money  amounting  to 


1100  ANNOTATED   FORMS  OF   PLEADING    AND    PRACTICE 

dollars  in  and  about  endeavoring  to  be  liealed 

of  his  said  injuries,  so  received  as  aforesaid ;  and  also  by  means 
of  the  premises,  plaintiff  then  and  there  became  and  was  sick, 
sore,  lame  and  disordered  and  so  remained  for  a  long  time, 
to  wit,  from  thence  thitherto,  during  all  of  which  time  the 
plaintiff  suffered  great  pain  and  has  been  hindered  from 
transacting  his  business  and  affairs  and  has  lost  and  been 
deprived  of  divers  large  gains  and  profits  which  he  might  and 
otherwise  would  have  gained  and  ac(|uired;  and  the  plaintiff 
avers  that  his  said  injuries  are  j)ermanent.    To  the  damage,  etc. 

(Virginia) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  tiie day  of 

,  19.  .,  and  at  the  time  of  the  grievances  hereinafter 

mentioned  the  said  defendant  was  the  owner  and  operator  of 
a  certain  steam  railroad  running  through  the  state  of  Vir- 
ginia, its  line  terminating  at   the    ,  Virginia,  in 

which  said  city  said  defendant  owned  and  operated  a  certain 
railroad  yard,  made  up  of  many  tracks,  over,  about  and  on 
which  yard  it  propelled  its  steam  trains,  cars,  and  engines  for 
the  purposes  of  making  up  and  disconnecting  its  trains,  shift- 
ing its  cars,  trains  and  engines,  and  loading  and  unloading 
freight,  and  doing  those  things  usual  in  railroad  yards,  the  .said 

yard    terminating    on     river    where    defendant 

owned  und  operated  its  certain  docks  and  piers;  and  the  plain- 
tiff avers  that  on  said  date,  at  the  .speeial  instance  and  reijuest 
of  said  defendant,  the  said  plaintiff*  became  and  was  the  hired 
servant  of  the  said  defendant,  being  in  the  employ  of  the 
defendant  and  directed  and  reciuired  by  it  to  work  in  and 
upon  its  railroad  track  and  line  and  to  replace  and  repair  the 
same  for  a  certain  wage  in  that  behalf  paid  to  plaintilf  by 
defendant,  and  especially  was  plaintiff'  employed  by  defendant, 
on  said  date,  to  repair  a  certain  railroad  switch  of  the  defmd- 
ant's  located   in  the   aforesaid   railroad  yard,   situated   about 

opposite  the  easterly  end  of street  where  it  is  cut 

off  by  the  said  yard,  the  two  tracks  forming  the  said  switch 

extending  therefrom  to    on    river 

and  to ,  so  that  defendant  by  means  of  said  switch 

runs  and  shifts  its  trains,  engines  and  cars  to  said 

and  to  said ;  and  the  plaintiff  avers  that  on  said 

day  and  date  aforesaid  he  was  engaged  in  his  said  duty  of 
repairing  the  aforesaid  switch,  which  was  then  out  of  order; 
and  that  it  thereupon  became  and  was  the  duty  of  the  defend- 
ant to  use  due  and  proper  care  to  furnish  and  provide  plaintiff 
with  a  safe  place  to  work,  and  to  exercise  like  care  not  to 
injure  said  plaintiff;  and  especially  was  it  defendant's  duty 
to  exercise  due  and  proper  care  in  abstaining  from  running 
its  yard  engines  and  trains  against  and  upon  plaintiff;  and  the 
plaintiff  avers  that  on  said  date  a  certain  yard  engine  of  the 


PERSONAL  INJURIES  1101 

defendant,  operated  and  controlled  by  defendant's  employees, 
approached  said  switch  from  the  west  and  desiring  to  go  over 
said  switch  and  on  and  over  the  track  which  extended  there- 
from to ,  as  aforesaid,  the  said  plaintiff  so  spiked 

and  temporarily  fixed  the  said  switch  as  to  allow  the  said  yard 
engine  to  pass  over  the  same  and  to  go  upon  its  said  journey 
as  aforesaid ;  and  the  plaintiff  avers  that  of  the  fact  that  the 
said  switch  was  out  of  order  and  that  plaintiff  was  engaged 
in  repairing  and  mending  the  same  and  that  the  said  yard 
engine  should  not  pass  over  the  same  until  directed  so  to  do  by 
the  plaintiff  those  in  charge  of  and  operating  the  said  yard 
engine  were  well  informed  and  knew,  and  they  also  knew  that 
the  provision  made  by  said  plaintiff  at  said  switch  for  the  pur- 
pose of  permitting  said  engine  to  pass  over  the  same  was  of  a 
temporary  character,  intended  only  to  permit  said  engine  to 

pass  down  said  track  to  said And  the  plaintiff 

avers  that  the  said  yard  engine  passed  over  said  track  to  said 

,  and  there,  after  hitching  to  several  railway  cars, 

started  back,  with  the  engine  in  front,  over  said  track  towards 
the  said  switch,  in  order  to  shift  the  said  cars  and  engine  from 

said  track  ,  to  some  other  location  in  and  upon 

the  said  railroad  yard;  and  the  plaintiff  avers  that  the  said 
defendant,  not  considering  its  duty  in  the  premises,  but  ex- 
pressly, negligently,  wrongfully  and  wilfully  failing  and  refus- 
ing to  perform  the  same,  carelessly,  wrongfully,  wilfully  and 
negligently  ran  the  said  yard  engine  with  the  said  cars  thereto 
attached,  in  charge  of  and  operated  by  its  employees,  from 

said over  the  said  track  extending  therefrom,  as 

aforesaid,  into  and  upon  the  said  switch,  and  negligently, 
wrongfully,  wilfully  and  carelessly  failing  to  keep  any  reason- 
able and  proper  watch  or  look  ahead,  and  without  ringing  the 
engine  bell,  blowing  its  whistle,  or  giving  the  plaintiff  the 
slightest  warning  of  its  approach,  though  the  said  employees 
of  the  defendant  in  charge  of  and  operating  said  engine  and 
train  well  knew  that  the  plaintiff  was  at  work,  as  aforesaid, 
at  said  switch  and  that  it  was  not  to  be  expected  that  the  said 
engine  and  cars  would  undertake  to  pass  over  said  broken 
switch  until  plaintiff  had  notified  them  so  to  do,  wilfully,  neg- 
ligently, carelessly  and  wrongfully  ran  the  said  yard  engine 
upon  and  against  the  said  plaintiff,  who  was  working  at  said 
switch,  and  while  the  said  plaintiff  was  exercising  due,  lawful 
and  proper  care,  and  thereb}'  hurling  the  said  plaintiff  vio- 
lently to  and  against  the  ground  inflicted  great  injury  upon 
him,  wounding  and  hurting  him  in  his  back,  side  and  body,  so 
that  the  said  plaintiff  underwent  and  suffered  much  pain  of 
mind  and  body,  to  wit,  from  thence  hitherto,  and  was  and  is 
permanently  injured  in  his  back  and  side,  to  the  plaintiff's 

damage  in  the  sum  of dollars ;  and  therefore  he 

sues. 


1102  ANNOTATED   FORMS  OF  PLEADING   AND   PRACTICE 

1631  Swing,  aerial,  action 

The  owner  of  an  amusement  park  who  has  an  interest  in  the 
admission  fees  to  the  attractions  is  liable  for  an  injury  caused 
by  his  concessioner's  failure  to  use  reasonable  care  in  the  con- 
struction, management  and  operation  of  devices  that  are  of  a 
character  to  produce  injury  unless  due  care  is  observed  in 
their  operation.^'^o 

1632  Swingf,  aerial,  Narr.  (Va.) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the day  of 

,  19..,  at  the  time  of  the  committing  the  grievances 

hereinafter  complained  of,  the  said  defendants  were  engaged 
in    conducting    a    large    pleasure    resort    in    the    county    of 

,  Virginia,  and  in  connection  therewith  operated 

numerous  pleasure  devices  and  machines,  and  amongst  others 
a  certain  device  and  machine  known  as  a  spring  swing;  that 
said  swing  was  composed   of  a   center  shaft  to   which   were 

attached    carriages    or    swings    each    carrying 

passengers;  that  at  the  foot  of  the  shaft  there 

were  large  exposed  and  uncovered  cog  wheels,  and  wiien 
the  electric  current  was  turned  on,  that  being  the  motive 
power,  by  reason  of  the  cog  wheels,  the  carriages  or  swings 
would  circle  out  from  the  center  shaft  until  they  reached 
a  considerable  height  from  the  ground,  and  after  swing- 
ing thus  for  a  certain  time  the  power  would  be  cut  ott' 
and  the  carriages  or  swings  would  gradually  slow  down 
and  descend  until  they  reached  the  starting  point;  that 
the  machine  was   operated   at  night,   as  well   as   in   the   day 

time,  and  the  light  for  it  was  furnished  by small 

trolleys  running  on  wires  attached  to  the  shaft ;  that  if  these 
trolleys  slipped,  the  apparatus,  the  passengers,  the  large  ex- 
posed cogs,  and  the  operator  would  be  left  in  darkness;  that 
the  device  was  patronized  mainly  by  Avomen  and  children  and 
if  the  light  trolleys  slipped  and  it  became  dark  the  women  and 
children  would  become  terrified,  scream  and  some  attempt  to 
jump  out ;  that  in  such  case,  the  operator  would  have  to  hurry 
to  shut  off  the  power  and  endeavor  to  get  the  trolleys  in  place, 
and  to  do  this  he  would  be  compelled  to  get  in  near  the  shaft, 
lean  foi*ward  over  the  large  open  and  exposed  cog  wheels  and, 
with  a  hook  on  the  end  of  a  stick,  pull  the  trolleys  in  place,  and 
during  this  time,  he  would  have  women  and  children  swing- 
ing around  him  in  carriages  or  in  swings  in  considerable  peril 
from  their  fright  and  excitement ;  that  when  the  trolleys  were 
new  or  in  good  condition,  they  acted  fairly  well;  that  said 

240  Stickel  V.  Eiverview  Sharp- 
Bhooters  Park  Co.,  250  111.  452,  455 
(1911). 


PERSONAL  INJURIES  1103 

plaintiff  was  employed  by  the  said  defendant  to  operate  said 

machine  or  device,  and  when  he  was  first  employed 

employees  were  assigned  to  operate  said  machine,  one  sold 
tickets  and  kept  the  cash,  one  assisted  passengers  on  and  off 
and  saw  that  the  cars  were  not  crowded,  looked  out  to  see  that 
the  children  did  not  get  near  the  machine  and  generally  looked 
after  the  safety  of  passengers,  one  took  up  the  tickets,  and 
one  operated  the  machine.  But  at  the  time  of  the  injury  of  the 
plaintiff,  he  had  been  assigned  alone  to  attend  to  all  of  the 
above  duties,  except  for  a  lady  who  acted  as  cashier. 

And  thereupon  it  became  necessary  and  was  the  duty  of  the 
said  defendant  to  take  reasonable  and  ordinary  care  so  that 
the  machinery  and  appliances  were  in  a  reasonably  safe  condi- 
tion, and  that  the  said  trolleys  should  be  kept  in  such  condition 
that  they  would  not  frequently  slip  off  and  leave  the  said 
plaintiff  and  the  passengers  in  darkness  and  danger,  and  to 
furnish  said  plaintiff  a  reasonably  safe  place  in  which  to  work; 
but  the  said  plaintiff  avers  that  the  said  defendant  failed  m 

its  duty  in  that  behalf,  in  this,  to  wit,  that  on  the day  of 

,   19 .  . ,   between   the   hours   of    in  the 

noon  the  said  plaintiff  was  operating  said  ma- 
chine and  device  in  a  careful  and  prudent  manner,  but  sev- 
eral times  that  night,  the  trolleys,  which  had  become  much 
worn,  slipped  and  left  the  plaintiff  and  his  passengers  in  dark- 
ness, and  at  about  the  time  named,  and  while  the  passengers 
were  swinging  in  the  air,  the  said  trolleys  again  slipped,  and 
in  the  darkness,  there  were  several  cries  from  alarmed  pas- 
sengers, and  one  woman  started  to  jump  out  of  one  of  the 
carriages  or  swings,  and  the  plaintiff  shut  off  the  power  and 
hastened  with  his  stick  to  pull  the  trolleys  in  place  to  get  hght, 
so  as  to  quiet  the  passengers  and  bring  them  to  the  ground  in 
safety.  And  the  plaintiff  avers  that  while  he  was  leaning  for- 
ward in  the  darkness  one  of  his  feet  slipped  and  the  other  was 
thrown  on  and  against  the  large  open  and  exposed  cogs,  his 

foot  was  caught  in  them  and  a  part  ground  nearly  off, 

and  as  a  consequence,  the  plaintiff  suffered  pain  and  was  com- 
pelled to  go  to  a  hospital  and  remain  for  about ; 

that  his  injuries  necessitated  the  cutting  off  of  his leg 

below  the  knee  twice.  And  the  plaintiff  avers  that  he,  several 
times,  reported  the  condition  of  the  trolleys  to  his  employer,  the 
said  defendant,  and  requested  that  they  be  fixed  and  that  he  was 
promised  that  they  would  be  fixed,  but  though  there  was 
ample  time  to  have  fixed  them,  they  were  not  fixed  up  to  the 
time  of  the  injury  to  the  plaintiff ;  by  reason  of  which  premises 
said  plaintiff  has  been  damaged  dollars. 

1633  Tracks  in  close  proximity,  Narr.  (HI.) 

For   that   whereas,    on,    to    wit,    ,    19..,    the    de- 
fendant was  a  corporation  and  was  possessed  of  and  operated 


1104  ANNOTATED   FORMS  OF  PLEADING   AND   PRACTICE 

a  line  of  railroad  from  the  city  of ,  in  the  county 

of ,  aforesaid,  to  and  within  the  city  of 

in  the  county  of , and  state  afore- 
said with  certain  cars  running  thereon  for  the  conveyance  of 
goods  and  passengers  for  reward. 

That,  on,  to  wit,  the  date  aforesaid,  plaintiff  became  a  pas- 
senger upon  one  of  the  cars  of  the  defendant  in  the  city  of 

.,  aforesaid,  to  be  conveyed  to  the  city  of , 

aforesaid,  and  had  in  his  possession  a  ticket  entitling  him  to 
a  ride  in  defendant's  said  car  from  and  within  the  city  of 

,  aforesaid,  to  and  within  the  city  of , 

aforesaid;  that  the  defendant  operated  its  cars  upon  a  double 
track   upon    one    of   the   public    streets    in    the    said    city    of 

,  which  tracks  were  placed  so  close  together  as 

to  leave  a  space  between  the  cars  of  defendant  when  passing 

upon  said  tracks  of,  to  wit,  one  inch ;  all  of  which 

conditions  were  well  known  to  the  defendant  and  of  which 
conditions  the  plaintiff  was  then  and  tlioro  without  notice. 

Plaintiff  further  avers  that  it  then  and  there  became  and 
was  the  duty  of  the  defendant  to  notify  the  plaintiff  and  the 
other  passengers  upon  its  said  cars,  of  the  close  proximity  of 
said  cars,  while  said  cars  were  passing  upon  said  tracks,  as 
aforesaid;  but  that  the  defendant  carelessly  and  negligently 
failed  and  neglected  to  notify  or  warn  him  of  the  proximity  of 
its  said  car.?,  while  passing  upon  said  tracks,  as  aforesaid, 
and  plaintiff  was  without  any  notice  or  knowledge  that  de- 
fendant's said  cars  passed  each  other  on  said  tracks  in  close 
proximity. 

Plaintiff  further  avers  that  while  he  was  riding  upon  said 
car  as  a  passenger,  aforesaid,  and  while  seated  at  one  of  the 
%vindows  in  said  car  and  while  in  the  exercise  of  ordinary  care 
for  his  own  safety,  another  car  of  defendant  passing  upon  said 

other  track  of  defendant  and  within,  to  wit, inch. . 

of  the  body  of  the  car  upon  which  plaintiff'  was  riding  as  afore- 
said, caught  and  struck  the  left  hand  of  the  plaintiff',  by  means 
w^hereof  the  left  hand  and  arm  of  plaintiff  was  thereby  crushed, 
bruised,  and  injured  and  drawn  to  and  between  the  defendant's 
said  two  cars;  and  plaintiff  was  thereby  greatly  and  perma- 
nently injured  as  hereinafter  alleged. 

2.  Plaintiff  further  avers  that  it  also  became  and  was  the 
duty  of  the  defendant  to  place  bars  or  safeguards  at  the  win- 
dows of  said  cars,  so  that  passengers  in  said  cars,  while  in  the 
exercise  of  ordinary  care  for  their  own  safety  would  not  be 
injured  by  being  struck  by  the  defendant's  car  or  cars  pass- 
ing the  said  adjoining  tracks;  but  that  the  defendant  carelessly 
and  negligently  failed  to  provide  bars  and  guards  at  the  win- 
dows of  its  said  cars  as  aforesaid ;  and  that,  on,  to  wit,  the  date 
aforesaid,  said  plaintiff  was  seated  at  one  of  the  windows  in 
said  car  as  a  passenger  as  aforesaid,  and  while  in  the  exercise 


PERSONAL  INJURIES  1105 

of  ordinary  care  for  his  own  safety,  another  car  of  defendant 
passing  upon  said  adjoining  track,  by  reason  of  the  absence 
of  bars  or  guards  as  aforesaid,  upon  the  car  upon  which  plain- 
tiff was  riding  as  aforesaid,  then  and  there  struck  the  left 
hand  of  the  plaintiff,  and  he  was  thereby  permanently  injured 
as  hereinafter  alleged. 

3.  Plaintiff  further  avers  that  while  he  was  a  passenger 
upon  defendant's  said  car  as  aforesaid,  and  while  in  the  exer- 
cise of  ordinary  care  for  his  own  safety,  and  while  seated  at 
a  window  in  defendant's  said  car,  the  defendant  by  its  agents 
and  servants  so  negligently  and  improperly  operated  said  cars 
upon  said  double  track  aforesaid,  that  by  and  through  the 
negligence  and  improper  conduct  of  the  defendant,  by  its  said 
agents  and  servants  in  that  behalf,  a  certain  other  car  of 
defendant  was  then  and  there  being  propelled  and  driven  upon 
the  track  adjoining  the  track  upon  which  the  car  in  which 
plaintiff  was  a  passenger  as  aforesaid,  was  being  driven;  that 
said  car  on  said  adjoining  track  struck  with  great  fdrce  and 
violence,  and  without  any  warning  or  notice  to  the  plaintiff  by 
the  defendant  or  its  agents  or  servants,  the  left  hand  of  plain- 
tiff, and  his  said  hand  was  caught  between  the  said  two  cars 
of  defendant,  and  his  said  hand  and  arm  was  pulled  and  forced 
between  said  two  cars,  and  he  was  thereby  greatly  and  perma- 
nently injured. 

And  plafintiff  avers  that  his  health  and  nervous  system  were 
thereby  shattered  and  impaired,  and  will  continue  to  be  so 
permanently ;  that  on  account  of  said  injuries  plaintiff  became 
sick,  sore,  lame,  disordered  and  injured,  and  will  continue  to 
be  so  permanently ;  that  plaintiff  has  suffered  great  bodily  pain 
and  mental  anguish  and  still  is  languishing  and  intensely  suf- 
fering in  body  and  mind,  and  in  the  future  will  continue  to 
suffer  bodily  pain  and  mental  anguish  on  account  of  said  in- 
juries ;  that  plaintiff  was  by  occupation  a  painter,  paper- 
hanger,  decorator  and  a  contractor  for  painting,  paper-  hang- 
ing and  decorating,  and  was  capable  of  earning  as  such 
painter,  paper-hanger,  decorator  and  contractor  for  painting, 
paper-hanging  and  decorating,  large  sums  of  money,  to  wit, 

dollars,   annually,   and  that  by  reason  of  said 

injuries  he  has  been  unable  to  work  at  his  said  occupation,  and 
will  be  unable  in  the  future  on  account  of  said  injuries  to  work 
at  his  said  occupation  or  any  occupation  and  earn  money ;  that 
he  has  paid  out  and  become  liable  for  large  sums  of  money, 

to   wit,    dollars  for  physician's  fees,   surgeon's 

fees,  medicine,  care,  nursing  and  attendance,  in  and  about 
endeavoring  to  be  healed  and  cured  of  his  said  injuries,  and 
will  be  obliged  in  the  future  to  pay  out  and  become  liable  for 
large  sums  of  money  in  endeavoring  to  be  healed  and  cured  of 
his  said  injuries,  to  the  damage,  etc. 


1106  ANNOTATED   FORMS  OF   F'LEADINQ   ANU   I'UACTICE 

1634  Train  service  incompetent,  Narr.  (111.) 

For  that  whereas,  on,  to  wit,  the day  of ,  l^- ., 

the  defendant  was  in  possession  and  control  of  a  certain  rail- 
road running  and  extending  from to , 

in  the  state  aforesaid,  and  was  then  and  there  engaged  as  a 
common  carrier  of  passengers  for  hire  between  the  points 
aforesaid;  that  on  the  day  and  date  aforesaid,  at  the  special 
instance  and  recjuest  of  the  defendant  plaint itT  l)ecame  and 
was  a  passenger  upon  a  certain  passenger  train  of  the  defend- 
ant running  from  said to  said ,  wliieh 

train  was  under  the  control  and  management  of  the  servants 
and  agents  of  the  defendant. 

And  the  plaintiff  avers  that  it  then  and  there  became  and 
was  the  duty  of  the  defendant  to  pUice  its  .s*aid  passenger  train 
under  the  control  and  management  of  careful  and  trustworthy 
agents  and  servants  who  would  have  a  dnv  regard  for  the 
safety  of  the  passengers  thereon  and  who  would  furnisii  such 
passengers  with  such  trustworthy  information  as  would  enable 
them  to  alight  from  said  train  at  the  proper  places  and  reach 
the  passenger  station  of  the  defendant.  Yet,  the  defendant, 
wholly  regardless  of  its  said  duty  in  tiiat  behalf,  placed  said 
train  in  the  charge  and  under  the  management  and  con- 
trol of  divers  negligent  and  untrustworthy  agt-nts  and  serv- 
ants, to  wit,  one  certain  conductor  and  one  certain  brake- 
man  whose  names  are  to  tlie  plaintilY  unknown.  And 
the  plaintiff  further  avers  that  when  said  train  was  ap- 
proaching the  said  station  of  the  said  serv- 
ants of  the  defendant  called  the  name  of  said  station  in 
the  car  in  which  plaintiff  was  riding  to  notify  pas- 
sengers that   the   said   train   was  approaching  the   station   of 

and  as  said  train  slowed  up  the  plaintiff  arose 

from  his  seat  and  went  out  upon  the  platform  of  the  car  in 
which  plaintiff  had  been  a  passenger  and  finding  the  doors  of 
the  vestibule  open  inquired  of  the  said  conductor  and  brake- 
man  the  location  of  the  passenger  depot  at  which  plaintiff  was 
to  alight  from  said  train;  that  the  said  conductor  and  brake- 
man,  well  knowing  that  the  said  depot  had  not  yet  been 
reached  by  said  train,  wilfully,  wantonly,  negligently  and 
falsely  informed  the  plaintiff  that  the  said  depot  was  located 
at  a  point  directly  opposite  where  the  train  of  the  defend- 
ant then  was  and  said  to  plaintiff  "It  is  right  over  there;" 
that  it  was  in  the  night  time  and  so  dark  that  plaintiff 
was  unable  to  distinguish  any  object ;  that  the  said  false 
information  so  given  by  said  conductor  and  brakeman 
aforesaid  induced  the  plaintiff  to  believe  that  the  train 
on  which  he  was  riding  had  stopped  at  the  defendant's  pas- 
senger station  and  in  consequence  thereof  the  plaintiff,  while 
in  the  exercise  of  due  care  for  his  own  safety,  attempted 
to  alight  from  said  train ;  but  the  plaintiff  avers  that  the  said 


PERSONAL  INJURIES  1107 

passenger  station  of  the  defendant  was  not  at  the  place  indi- 
cated by  the  said  conductor  and  brakeman  and  the  said  train 
had  not  stopped  as  plaintiff  had  been  so  led  to  erroneously  sup- 
pose, and  in  consequence  whereof  the  plaintiff  in  attempting 
to  alight  from  said  train  fell  and  was  dragged  and  pulled 
under  the  defendant's  said  train  and  so  mangled  and  bruised 
by  the  defendant's  said  cars  as  to  make  amputation  of  the 

plaintiff's arm  necessary;  by  means  whereof,  the  plaintiff 

became  and  was  sick,  sore  and  disabled  and  so  continued  for  a 
long  space  of  time,  to  wit,  from  thence  hitherto ;  and  suffered 
great  pain;  and  was  obliged  to  and  did  pay  out  and  expend 
divers  large  sums  of  money  in  and  about  being  treated  and 
nursed  during  the  time  aforesaid;  and  was  hindered  and  pre- 
vented from  attending  to  his  ordinary  business  or  calling  of 
a  farmer  in  said  county;  wherefore,  etc. 

1635  Trestle  accident,  Narr.  (Miss.) 

Plaintiffs, and ,  are  sisters  of  the 

whole  blood,  and  are  the  only  surviving  heirs  of , 

their   mother  and  now  deceased,   the  wife  of    , 

deceased. 

On   or   about   the    day   of    ,   19..,   plaintiff's 

mother ,  a  woman  of  about years  of 

age,  decrepit  in  body  and  weak  and  childish  in  mind,  had 

started  out  to  fish  in  one  of  the  creeks  or  bayous, 

of ,  on  or  when,  either  going  to  or  coming  from 

said  fishing  expedition,  the  said   started  across 

one  of  defendant's  trestles  about miles  and  about 

of  county,  Mississippi,  on  defend- 
ant's  line  of  track  known  as  the division.     This 

trestle  is  about feet  long,  and  on  either  side  is  a 

deep  and  dangerous  bayou.     Plaintiffs'  mother  had  walked 

a  distance  of  about feet  over  said  trestle  on  her 

way  across  the  same  when  she  was  struck  in  the  back  by 

defendant    company's    bound    passenger    train 

that  leaves  about o'clock  in  the noon  every 

day,  and  was  instantly  killed. 

Plaintiffs  charge  that  the  killing  of  their  mother  by  defend- 
ant company's  said  train  as  above  set  forth  was  due  to  wilful 
misconduct  of  defendant's  agents  and  servants  in  charge  of 
said  train  or  to  such  gross  negligence  and  utter  disregard  for 
human  life  on  the  part  of  said  train  crew  as  to  amount  to 
wilfulness. 

Plaintiffs  aver  that  from  the  direction  from  which  defend- 
ant's train  was  approaching  said  trestle,  a  person  walking  on 
said  trestle  could  be  seen  without  any  effort  on  the  part  of  one 
looking  for  a  distance  of  at  least  mile. .,  that  de- 
fendant's train  was  running  at  the  rate  of   or 

miles  per  hour,  that  it  was  a  light  train,  equipped 


1108  ANNOTATED   FORMS  OF   PLEADING   AND   PRACTICE 

with  air-brakes  and  that  it  could  be  stopped  at  a  short  distance, 
and  that  although  defendant's  agents  and  servants  saw  the 
peril  of  this  old  woman  in  time  to  stop  and  avoid  an  injury, 

she  having  walked  for  a  distance  of   feet  over 

said  trestle,  for  a  greater  part  of  the  while  in  plain  unob- 
structed view  of  the  defendant 's  said  agents  and  servants  in 
charge  of  said  train,  who  were  looking,  and  that  although  said 
track  was  level  and  this  accident  could  easily  have  been 
avoided  by  the  least  etTort  to  stop  the  said  train,  said  defend- 
ant company's  agents  and  servants  made  no  effort  to  stop 
said  train  before  striking  this  old  woman  in  the  back,  and 
that  the  only  way  she  could  have  possibly  avoided  being 
struck  by  said  train,  would  have  been  to  have  jumped  into  a 
ditch  or  boyou  from  the  high  trestle  at  the  peril  of  her  life. 
Wherefore,  on  account  of  the  gross  carelessless  of  defendant 
company's  agents  and  servants,  and  their  utter  disregard  of 
human  life,  as  above  set  forth,  plaintiffs  have  lost  their  mother 
and  have  been  greatly  injured  by  the  loss  of  her  services,  and 
on  account  of  the  gross  and  wilful  conduct  of  the  defemlant 
company's  agents  and  servants  in  causing  the  death  of  their 
mother,  bring  this  their  suit  in  the  sum  of dol- 
lars and  all  costs. 

1636  Unguarded  machinery,  action 

It  is  the  absolute  duty  of  an  employer,  without  notice  of  a 
factory  inspector,  to  so  locate,  wherever  jiossible.  all  machinery 
and  appliances  of  the  character  mentioned  in  the  Illinois  statute, 
or  to  so  properly  enclose,  fence  or  otherwise  protect  them,  as 
not  to  endanger  the  safety  of  his  employees.-** 

1637  Unguarded  machinery,  declaration,  sufficiency 

A  declaration  which  is  based  upon  a  violation  of  the  statute 

requiring    the    proper    location    and    protection    of    dangerous 

machinery  is  sufficient  if  it  avers  enough  to  show  that  the 

machinery  in  question  was  dangerous  to  employees  and  was  not 

protected,   although   it   fails   to   use  the   precise   words  of  the 
statute.2^2 

1638  Unguarded  machinery,  Narr.  (111.) 

For  that  whereas,  the  defendant,  on,  to  wit,  the  ....  day  of 

,  19.  .,  was  the  owner,  user  and  operator  of  a  certain 

factory,  mill  or  workshop  situated  in  the  town  of 

in  said  county  and  state  of  Illinois;  that  in  said  factory,  mill 

241  Streeter    v.    "Western    Wheeled  =«:  Streeter    v.    Western    Wheeled 

Scraper  Co.,  254  111.  244,  247  (1912)  ;       Scraper  Co.,  254  111.  248 
See.   1,  Laws  1909,  p.  202    (Hurd'a 
Stat.  1911,  p.  1128). 


PERSONAL   INJURIES  1109 

or  workshop,  on,  to  wit,  the  day  aforesaid,  the  said  defendant 
owned,  used  and  operated  certain  power  driven  machinery, 
including  saws,  plainers,  jointers  and  other  appliances  for  the 
purpose,  among  others,  of  manufacturing;  and  especially  did 
said  defendant  use  in  its  said  factory,  mill  or  workshop  a 
certain  jointer  for  the  purpose  of  jointing,  cutting  and  manu- 
facturing plow  beams  and  other  materials. 

And  the  plaintiff  avers  that  thereupon  it  became  and  was 
the  duty  of  the  said  defendant  to  use  due  and  proper  and  ordi- 
nary care  and  caution  to  furnish  the  plaintiff  with  reasonably 
safe  and  suitable  machinery  with  which  to  perform  his  work. 

Yet,  the  defendant,  not  regarding  its  duty  in  that  behalf, 
as  aforesaid,  on,  to  wit,  the  day  aforesaid,  negligently,  wrong- 
fully and  carelessly  failed  and  neglected  to  use  due  and  proper 
care  and  caution  to  furnish  the  plaintiff  with  machinery  with 
which  he  could  with  reasonable  safety  perform  his  duties  in 
this,  that  the  said  defendant  did  negligently,  wrongfully  and 
carelessly  furnish  the  plaintiff  a  machine,  to  wit,  a  certain 
jointer,  which  was  not  properly  guarded  by  protective  ap- 
paratus for  the  safety  of  the  plaintiff  for  the  carrying  out  of 
the  terms  of  his  employment,  by  reason  of  which  said  plaintiff 
was  injured  as  hereinafter  set  forth. 

2.  And  that  it  then  and  there  also  became  and  was  the  duty 
of  the  said  defendant  to  use  reasonable  and  ordinary  care  and 
caution  to  provide  for  the  plaintiff  a  reasonably  safe  place  in 
which  to  work  and  not  to  subject  him  to  any  extraordinary  risk 
of  hazard  in  the  course  of  his  duty  and  employment. 

Yet,  the  defendant,  not  regarding  its  duty  in  that  behalf,  on, 
to  wit,  the  day  aforesaid,  did  not  use  reasonable  and  proper 
care  and  caution  to  provide  for  the  plaintiff  a  reasonably  safe 
place  in  which  to  discharge  his  duties  and  work,  and  wholly 
failed  so  to  do  and,  on  the  contrary,  did  wrongfully  and  neg- 
ligently subject  the  plaintiff  to  extraordinary  risks  and 
hazards  in  the  course  of  his  duty  and  employment,  in  this, 
to  wit,  that  the  said  defendant  on  the  day  aforesaid  caused, 
suffered  and  permitted  two  certain  power  driven  machines, 
to  wit,  a  jointer  and  a  band  saw  to  be  and  remain  in  such  close 
proximity  that  the  operatives  of  said  machines  could  not  ope- 
rate and  work  upon  said  machines  with  reasonable  safety  to 
one  another ;  that  the  last  aforesaid  two  machines  were  so 
placed  and  arranged  that  the  plaintiff  could  not,  while  per- 
forming his  duties,  work  with  reasonable  safety  to  himself. 

And  the  plaintiff  avers  that  the  said  defendant  by  the  exer- 
cise of  reasonable  care  and  caution  might  have  known  and  did 
know  of  the  aforesaid  unsafe  condition  with  reference  to  the 
location  and  proximity  of  said  machine  and  that  by  failing 
to  have  the  said  machines  separated  to  a  reasonably  safe  dis- 
tance from  one  another  it  carelessly  and  negligently  subjected 
the  plaintiff  to  extraordinary  risks  and  hazards  in  his  said 


1110  ANNOTATED   FORMS  OF   PLEADING    AND   I'lUCTICE 

employment,  of  which  facts  and  conditions  the  plaintiff  did  not 
have  knowledge  or  e(iual  means  oi"  knowk-dgu  as  the  defend- 
ant, and  by  means  whereof  plaintiff  was  injured  as  hereinafter 
set  forth. 

3.  And  it  was  then  and  there  also  the  duty  of  the  said  de- 
fendant to  warn  inexperienced  employees  and  to  pomt  out  and 
explain  to  such  inexperienced  employees  the  dangers  of  such 
employment  in  said  lactory ;  that  at  the  time  and  place  afore- 
said the  defendant  wrongfully  and  negligently  neglected  its 
duty  in  that  behalf,  and  then  and  there  provided  for  the  use 
of  its  employees  a  certain  power  driven  piece  of  machinery, 
known  as  a  jointer,  used  for  planing  and  jointing  of  wood,  and 
the  defendant  then  and  there  negligently  and  w  roiiglully  s-uf- 
fered  and  j)ermitted  certain  knives,  gears,  cogs,  pulleys,  belts 
and  shafting,  with  whieh  said  jointer  was  operated,  to  be  and 
remain  unenclosed  and  unfenced  and  otherwise  unprotected, 
so  that  persons  and  employees  engaged  in  the  work  of  operat- 
ing said  jointer  were  in  great  danger  of  being  injured  thereby 
when  said  jointer  was  in  operation ;  that,  while  said  jointer 
was  in  operation,  the  knives  thereof  revolved  at  a  great  and 

dangerous  rate  of  speed,  to  wit, thousand  times 

per  minute. 

And  the  plaintiff  avers  that  the  said  jointer,  knives,  cogs, 
pulleys,  belting  and  shafting  were  not  reasonably  safe  to  be 
used  in  said  factory  unenclosed,  unfenced  and  unprotected,  as 
aforesaid;  all  of  which  was  then  and  there  well  known  to  the 
defendant,  or  by  the  exercise  of  ordinary  care  ought  to  have 
been  known  to  the  defrndant,  and  all  of  which  was  unknown 
to  the  plaintiff,  and  the  i)laintiff  did  not  have  ecpial  means 
of  knowledge  of  such  conditions  as  the  defendant. 

And  the  i)laintiff  avers  that,  at  the  time  and  place  afore- 
said, he  was  an  inexperienced  worker  and  did  not  know  of  the 
dangers  and  hazards  incident  to  the  operation  of  said  jointer, 
concerning  which  inexperience  on  the  part  of  the  plaintiff, 
the  defendant  well  knew  or  by  the  exercise  of  ordinary  care  or 
caution  ought  to  have  known ;  in  conse<iuence  of  which  said 
plaintiff  was  injured  as  hereinafter  set  forth. 

4.  And  the  plaintiff  avers  that  it  was  also  the  statutory 
duty  of  the  said  defendant,  on  the  day  aforesaid,  to  so  locate 
said  jointer,  belting  and  shafting,  wherever  possible,  as  not  to 
be  dangerous  to  employees  of  the  said  defendant,  or  that  the 
same  should  be  properly  enclosed,  fenced  or  otherwise  pro- 
tected; but  the  said  defendant,  not  regarding  its  statutory  duty 
in  that  behalf,  on  the  day  aforesaid,  wrongfully  and  negli- 
gently maintained,  used  and  operated  in  its  said  factory  cer- 
tain power  driven  machinery,  including  a  certain  jointer,  with 
certain  belting  and  shafting,  wherewith  the  same  was  oper- 
ated,   which    said    powder    driven    machinery,    including    said 


PERSONAL  INJURIES  1111 

jointer,  belting  and  shafting  was  dangerous  to  employees  and 
was  not  properly  enclosed,  fenced  or  otherwise  protected ;  that, 
on  the  day  aforesaid,  it  was  possible  and  practical  for  the  de- 
fendant to  operate  its  said  factory  with  its  said  power-driven 
machinery,  including  said  jointer,  belting  and  shafting,  prop- 
erly enclosed,  fenced  and  otherwise  protected,  so  that  the  same 
would  not  be  dangerous  to  employees,  and  that  it  was  pos- 
sible and  practical  to  so  locate  the  said  power  driven  ma- 
chinery, including  said  jointer,  belting  and  shafting,  so  that 
the  same  would  not  be  dangerous  to  employees;  that,  on  the 
day  aforesaid,  the  said  defendant  then  and  there  wrongfully 
and  negligently  suffered  and  permitted  the  aforesaid  jointer, 
belting  and  shafting,  wherewith  the  same  was  operated  to  be 
and  remain  unenclosed,  unfenced  and  unprotected  and  dan- 
gerous to  employees,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  so  that  persons  and  employees 
engaged  in  and  around  the  said  jointer  were  in  great  danger 
of  becoming  injured  thereby  when  said  jointer  was  in  opera- 
tion ;  that  when  said  jointer  was  in  operation  the  knives,  which 
formed  a  part  of  said  jointer,  were  unenclosed,  unfenced  and 
otherwise  unprotected,  and  were  not  reasonably  safe  to  be 
used  in  said  factory;  and  that,  on  the  day  aforesaid,  it  was 
possible  and  practical  to  enclose,  fence  and  protect  the  said 
knives  in  said  jointer  so  that  the  same  would  be  reasonably 
safe  to  be  used  in  said  factory  by  employees  of  the  said 
defendant ;  all  of  w^hich  was  then  and  there  unknown  to  the 
plaintiff  and  was  then  and  there  well  known  to  the  defendant, 
or  by  the  exercise  of  ordinary  care  and  caution  ought  to  have 
been  known  by  the  said  defendant. 

And  the  plaintiff  avers  that,  at  the  time  and  place  aforesaid, 
he  was  a  laborer  or  helper  in  the  employ  of  the  said  defend- 
ant in  its  said  factory,  and  was  then  and  there  engaged  in  as- 
sisting the  operator  of  said  jointer  in  said  factory  in  the  plan- 
ing and  jointing  of  certain  plow  beams  and,  while  said  plaintiff 
was  engaged  in  said  employment,  and  while  in  the  exercise  of 
due  care  and  caution  for  his  own  safety,  the  plaintiff's  hand 
then  and  there  unnecessarily  and  unavoidably  became  caught 
and  thrown  into  and  against  the  knives  and  other  parts  of  the 
said  jointer,  by  reason  of  the  said  jointer  and  the  knives 
thereof  being  unenclosed,  unfenced,  unguarded  and  otherwise 
unprotected,  and  by  reason  whereof  the  plaintiff's  hand  was 
cut,  bruised  and  lacerated  and  certain  of  the  plaintiff's  fingers, 

to  wit,  fingers,  were  cut  off  and  then  and  there 

and  thereby  he  became  and  was  and  is  permanently  disabled, 
to  the  damage,  etc. 

(Michigan) 

For  that  whereas,  heretofore,  on,  to  wit, , , 

and  for  a  long  time  prior  thereto,  said  defendant  owned,  con- 
trolled and  operated  a  certain  factory  situate  in  the  city  of 


1112  ANNOTATED    FORMS  OF   I'LEADINQ   AND   PRACTICE 

in  said  county  and  slate,  for  the  manufactun-  of 

forest  products,  in  which  intestate  then  was  employed  as  a 

laborer  in  the story  thereof. 

That  in  the  upper  part  of  said  story  and  about  eleven  feet 
from  the  floor  thereof,  there  was  located  an  iron  shaft  about 

feet  in  length  attached  to  a  frame  hanger,  said  shaft 

being  parallel  with  and  about  inches  above  the 

lower  timber  of  said  hanger,  its  ends  attached  to  the  sides  of 
the  uprights  thereof,  and  at  and  near  the  left  of  the  center 
of  said   shaft,    and    inside   said    uj)rights,    there   was    located 

a  pulley,  around  which  passed  a  leather  belt  about 

inches  in  width  connected  with  and  operating  an  elevator 
employed  to  convey  products  from  said  story  to  one 
above,    and    on    the    left    end    of    said    shaft    and  inside  said 

uprigiits,    and    about    inches   from   saiil    pulley, 

there  was  located  an  iron  eoiiar  about inches  in 

diameter,  surrounding  saitl  shaft  and  attached  thereto  by  a 
set  screw,  the  end  of  which  protruded  about  one  inch  from 
the  surface  of  said  collar. 

That  in  the  ordinary  operation  of  said  factory  said  shaft 
revolved  about  one  hundred  times  a  minute  and  said  products 
at  times  would  clog  ami  stoj)  said  elevator  and  the  continued 
revolutions  of  said  shaft  would  force  such  belt  of  said  pulley 
onto  said  shaft  at  the  left;  tiiat  no  proper  shifter  or  other 
mechanical  contrivance  for  the  purpose  of  throwing  such  belt 
on  said  pulley,  and  no  proper  safeguard  was  then  provided  for 
such  belting,  and  although  po.ssible,  no  loose  pulley  was  em- 
ployed on  said  shaft  to  receive  such  belt  when  so  forced  ofT, 
and  no  guard  was  emi)l(»yed  about  said  set  screw. 

That  whenever  such  bi-lt  was  so  forced  o(T  it  was  impo.ssible 
to  rej)lace  it  uidess  the  machinery  of  said  factory  was  in  mo- 
tion and  the  only  method  provided  for  so  replacing  it  was  for 
one  of  said  laborers  to  place  a  ladiler  against  such  lower  timber 
of  said  shaft,  ascend  such  ladder,  and  with  .saiil  machinery  so 
in  motion,  force  said  belt  on  such  pulley  witli  his  right  lu'ind  ; 
that  such  act  re(iuired  severe  i)hysieal  exertion  and  in  ortler 
to  counterbalance  the  force  used  and  hold  such  ladder  in  place 
it  was  necessary  for  such  laborer  to  inst-rt  his*  left  hand  be- 
tween said  shaft  and  lower  timber  near  said  collar  and  set 
screw,  and  grasp  such  timber  firndy  and  secun-ly  therewith; 
that  while  so  employed  the  attention  of  said  laborer  was 
engrossed  with  maintaining  his  position  on  such  ladder  and 
the  work  of  his  right  hand  antl  said  collar  and  set  screw  were 
not  within  his  observation,  and  the  revolution  of  said  shaft, 
the  accumulation  of  dirt,  oil  and  grease  on  said  collar,  and 

the  duskiness  of  the  upper  part  of  .said    storv, 

obscured  the  presence  of  said  set  screw,  thus  exposing  such 
laborer  to  the  liability  of  injury  by  having  his  clothing  caught 
and  he  be  involved  in  such  shaft. 

That  the  tendency  of  said  belt  to  be  so  forced  from  said 


PERSONAL  INJURIES  1113 

pulley,  the  method  so  provided  for  replacing  it,  and  the  pres- 
ence of  said  set  screw,  were  then  unknown  to  the  factory- 
inspector  having  jurisdiction  under  an  Act  No.  113  of  the 
acts  of  this  state  for  the  year  1901,  as  amended,  and  his  sev- 
eral assistants  and  deputies,  and  their  attention  had  not  there- 
tofore been  directed  thereto,  in  consequence  of  which  no  such 
inspector  before  then  was  called  upon  under  said  Act  to  exer- 
cise, or  did  exercise  any  discretion  as  to  the  employment  of  a 
proper  shifter  or  other  mechanical  contrivance  for  the  pur- 
pose of  throwing  such  belt  on  such  pulley,  or  of  determining 
the  necessity  of  guarding  such  set  screw,  as  otherwise  might 
have  been  so  exercised  and  determined,  and  the  existence  of 
said  set  screw  was  then  unknown  to  plaintiff. 

That  prior  to  said   ....    day  of    ,  such  inspector, 

under  authority  contained  in  said  Act,  ordered  defendant  to 
cover  and  properly  guard  all  set  screws  in  said  factory,  with- 
out distinguishing  such  set  screw  from  others  employed  therein. 

That,  on,  to  wit,  said  ....  day  of ,  . . . .,  said  elevator 

becoming  so  clogged  and  said  belt  being  so  forced  off  said 
pulley,  intestate,  under  the  terms  of  his  employment  was  re- 
quired to  replace,  and  then  did  attempt  to  replace  said  belt 
in  the  method  above  provided  hereinbefore  alleged. 

Plaintiff  avers  that  it  then  and  there  became  and  was  the 
duty  of  defendant  to  have  covered  and  guarded  said  set  screw 
so  that  the  clothing  of  intestate  coming  in  contact  with  such 
shaft  and  collar  would  not  be  caught  by  said  set  screw  and 
he  be  involved  in  said  moving  shaft ;  but  that  defendant  then 
and  there  carelessly,  negligently  and  wrongfully  omitted  its 
duty  in  that  behalf,  in  that  it  then  and  there  carelessly,  neg- 
ligently and  wrongfully  failed  to  cover  and  guard  such  set 
screw. 

Plaintiff  further  alleges  that  defendant  having  theretofore 
been  ordered  by  such  inspector,  under  authority  contained  in 
said  Act  No.  113  of  the  acts  of  this  state  for  the  year  1901  as 
amended,  to  cover  and  properly  guard  all  set  screws  in  said 
factory,  it  then  and  there  became  and  was  the  duty  of  defend- 
ant under  such  Act  to  have  covered  and  guarded  said  set  screw 
so  that  the  clothing  of  intestate  coming  in  contact  with  such 
sliaft  and  collar  would  not  be  caught  by  said  set  screw  and  he 
be  involved  in  such  moving  shaft ;  but  that  defendant  know- 
ingly and  wrongfully  omitted  its  duty  in  that  behalf,  in  that  it 
then  and  there  knowingly  and  wrongfully  failed  to  cover  and 
guard  such  set  screw,  after  being  so  ordered  by  such  inspector. 

Plaintiff  further  alleges  that  having  so  omitted  and  failed 
to  cover  and  guard  such  set  screw  it  then  and  there  became 
and  was  the  duty  of  defendant  to  inform  and  warn  intestate  of 
the  existence  and  presence  thereof  so  that  he  might  avoid 
liability  of  injury  through  having  his  clothing  caught  thereby 
and  he  be  involved  in  such  moving  shaft  when  so  replacing 


1114  ANNOTATED   FORMS   OF   PLEADING   AND   PRACTICE 

said  belt;  but  that  defendant  tlu-n  and  there  carelessly,  neg- 
ligently and  wrongfully  omitted  its  duty  in  that  behalf,  in 
that  it  then  and  there  carelessly,  negligently  and  wrongfully 
failed  to  inform  or  warn  intestate  of  the  existence  or  presence 
of  said  set  screw. 

Plaintiff  further  alleges  that  under  the  provisions  of  section 
8  of  said  Act  No.  113  of  the  laws  of  this  state  for  the  year 
1901,  as  amended,  it  then  and  there  became  and  was*  the 
duty  of  defendant  to  have  provided  the  said  belting  with  a 
proper  safeguard  and  said  shaft  with  a  louse  pulley  to  receive 
such  belt  when  so  forced  off;  but  that  defendant  then  and 
there  knowingly  and  wrongfully  omitted  its  duty  in  that  behalf 
in  that  it  knowingly  and  wrongfully  failed  to  provide  such 
belting  with  any  safeguard  ami  such  shaft  with  a  loose  pulley 
to  receive  said  belt  when  so  forced  off. 

Plaintiff  further  allege.s  that  def.'ndant  having  knowledge^ 
of  the  location  of  said  .shaft  ami  of  said  hanger,  pulley,  belt 
collar  and  set  screw,  and  of  the  tendency  of  said  jjroducts  so 
to  clog  said  elevator,  and  of  such  revolutions  of  said  shaft  so 
to  force  said  belt  oft"  said  pulley  onto  such  shaft,  and  that  no 
such  proper  safeguard  for  such  belting  and  no  such  proper 
shifter  or  other  mechanical  contrivance  was  so  provided,  and 
that  no  loose  pulley  was  so  employed,  ami  of  the  impossibility 
of  replacing  sueli  belt  except  with  said  macliinery  in  motion, 
and  of  the  method  then  provided  for  so  rei)lacing  it,  and  that 
the  attention  of  such  laborer  so  employed  was  so  engro.ssed, 
and  of  said  collar  and  set  screw  not  then  being  covered  or 
within  the  observation  of  such  laborer,  and  of  such  accumula- 
tion of  dirt,  oil  and  grease,  and  such  darkness,  all  tending 
so  to  obscure  the  presence  of  such  set  screw  and  of  the  expos. -d 
situation  of  the  laborer  .s-o  employed  in  replacing  .said  belt, 
and  of  his  liability  to  injury  when  so  doing,  and  having  or 
being  charged  with  knowledge  of  the  provisions  of  said  sec- 
tion 8  of  Act  113  of  the  Public  acts  of  this  state  for  the  year 
1901,  and  of  the  duty  of  the  said  factory  in.sjiector,  his  sev- 
eral assistant.s  antl  deputies,  therein  ref«'rred  to,  to  exercise 
their  discretion  as  to  whether  such  proper  .shifter  or  other 
mechanical  contrivance  for  the  purpose  of  throwing  such  belt 
on  said  {>ulley,  should  be  furnished  or  supplied,  and  of  deter- 
mining the  necessity  of  projjcrly  guanling  such  set  screw, 
and  of  the  fact  that  no  such  inspector,  a.ssistant  or  deputy 
theretofore  had  been  so  advised  or  informed,  it  then  and  there 
became  and  was  the  duty  of  defendant  in  the  premises  to 
have  so  advised  and  informed  such  insi^ector,  assistant  or 
deputy,  so  that  he,  the  said  inspector,  assistant  or  deputy, 
might  exercise  his  discretion  as  to  the  use  of  such  shifter  or 
other  mechanical  contrivance  and  determine  the  necessity  of 
properly  guarding  said  set  screw\ 

Plaintiff  avers  that  defendant  then  and  there  knowinglv  and 
wrongfully  omitted  its  duty  in  that  behalf,  in  that  it  knowingly 


PERSONAL   INJURIES  1115 

and  wrongfully  failed  to  advise  and  inform  such  inspector, 
assistant  or  deputy  in  the  premises,  in  consequence  of  which  no 
such  inspector,  assistant  or  deputy  theretofore  exercised  any 
discretion  in  requiring  defendant  to  furnish  or  supply,  or  cause 
to  be  furnished  or  supplied,  any  proper  shifter  or  other  me- 
chanical contrivance  for  the  purpose  of  throwing  such  belt 
onto  said  pulley,  or  of  determining  the  necessity  of  properly 
guarding  such  set  screw,  other  than  in  the  general  direction 
given  as  aforesaid,  and  having  so  knowingly  and  wrongfully 
failed  to  advise  and  inform  such  inspector,  assistant  or  deputy 
then  and  there  carelessly  and  negligently  failed  to  furnish  and 
supply  such  proper  shifter  or  other  mechanical  contrivance 
and  then  and  there  carelessly  and  negligently  failed  to  guard 
such  set  screw ;  in  conseciuence  whereof,  as  intestate  was  so 
replacing  such  belt  on  such  pulley,  in  the  method  so  provided 
and  in  the  exercise  of  due  care  on  his  part,  the  clothing  of  his 
left  arm  was  caught  in  said  set  screw  and  he  was  suddenly 
drawn  over  the  top  of  said  moving  shaft  and  the  bones  of  his 
said  left  arm  were  crushed  and  broken  about  three  inches 
above  the  elbow,  and  the  tlesh  and  muscles  of  the  said  arm 
were  stripped  from  the  bones  thereof  and  such  lower  part  of 
said  arm  was  completely  pulled  and  severed  therefrom,  and 
the  muscles  and  nerves  of  his  slioulders  strained  and  impaired 
and  the  flesh  of  his  face  and  nose  was  cut  and  his  head  and 
the  internal  organs  thereof  injured,  impaired,  lacerated  and 
torn ;  that  in  conseciuence  of  the  serious  injury  so  inflicted 
upon  his  left  arm  it  became  necessary  to  amputate  and  cut  off 
a  portion  of  it  about  four  inches  above  the  elbow,  and  his  said 
arm  and  slioulders  and  the  muscK^s  and  nerves  thereof  were 
cripj)led  and  maimed  and  he  became  and  was  permanently 
injured. 

That  at  the  time  of  such  injuries  intestate  was  of  the  age  of 

years  and  was  strong  and  able-bodied,  and  afllicted 

with  no  disease  other  than  a  supjnirative  inflammation  of 
the  middle  right  ear,  and  was  capable  of  earning,  and  was 
earning  the  i)revailing  wages  of  a  common  laborer;  and  in 
conseciuence  of  such  injuries  and  of  the  injuries  so  sustained 
by  him  in  his  said  sliouklers,  and  the  loss  of  his  said  arm,  he 
thereupon  became  lame  and  the  flesh  of  his  face  and  nose 
became  sore  and  disfigured,  and  the  muscles  and  nerves  of 
his  shoulders  became  powerless  to  perform  their  usual  func- 
tions, and  his  head  and  such  ear  were  seriously  injured  and 
rui)tured.  and  the  said  inflammation  was  aggravated  and  ex- 
tended, and  he  became,  continued  and  remained  permanently 
injured  in  his  left  arm  and  shoulders  and  sick  and  sore,  and 
the  disease  of  said  ear  continued  and  was  aggravated  and 
extended,  and  he  so  continued  for  a  long  period  of  time,  to  wit, 
from  thence  hitherto,  wholly  unable  to  earn  such  prevailing 
wages,  or  to  perform  or  to  attend  to,  care  for  or  manage  his 
affairs  or  business,  and  his  nervous  system  became  weakened 


1116  ANNOTATED    FORMS   OK    PLtLVDING    AND    PHACTICE 

and  incapable  of  resisting  disease,  and  tluTeafbT  and,  <»ii,  to 

wit, day  of ,  he  died  from  the  effeets  of 

such  injuries  and  disease. 

That  by  reason  of  such  injuries  and  the  aggravation  of  said 
disease  intestate  was  comjjtlUd  to  lay  out  and  expend,  and 
did  lay  out  and  expend,  large  sums  of  mom-y  for  medical 
and  surgical  aid,  nu-dieine,  cure  and  nursing,  and  sutTen-d  great 
bodily  pain;  that  said  condition  was  caused  wholly  from  said 
injuries  and  the  results  thereof;  and  that  in  consequence 
thereof  and  of  his  final  sickness,  burial  and  death  so  result- 
ing from  such  injuries,  his  estate  was  put  to  large  expense, 
to  wit,  the  sum  of dollars,  and  has  lost  the  sev- 
eral sums  V  hieh  otherwise  intestate  would  have  earned  had  he 
lived  until  the  termination  of  the  expectancy  of  his  life,  to 
plaintiff's  damage  as  such  administratrix  in,  to  wit,  the  sum 
of dollars. 

That  intestate  left  surviving  hira  ,  his  widow, 

and   his  son,  next  of  kin,  and  by  reason  of  his 

death  his  said  estate  and  plaintiff  and  said  widow  ami  son 
each  has  sutTered  pecuniary  injury,  and  has  been  and  is  de- 
prived of  mean.s*  of  support  and  eontribution  theretofore  made 
to  them  by  intestate,  and  a  right  of  action  has  survived  and 
accrued  to  plaintiff  as  such  administratrix,  and  she  has  suf- 
fered   great    damage    in,    to    wit.    the    sum    of    

dollars ;  and  therefore  she  brings  suit. 

1639  Unseaworthy  vessel,  Narr.  (Mich.) 

For  that  whereas,  heretofore,  to  wit,  on  the day  of 

,  11).  .,  the  said  defendant,  the company, 

was  a  corporation,  and  had  a  place  of  busine.ss  at 

street,  in  the  city  of  ,  county  and  state  aforesaid, 

and  having  its  principal  busines.«?  ofliee  at in  said 

city;  that  at  the  time  aforesaid,  and  for  a  considerable  time 
prior  thereto,  the  said  defendant  used,  handled  and  controlled, 

in   its  said   busine.ss,  the   tug    ,  and   was  at   the 

time  aforesaid,  by  its  oflieers  and  agents,  engageii  in  hauling 

ice  from  county,  Michigan,  to  its  said  place  of 

business   at    street,    ,    

county,  Mieiiigan,  by  means  of  said  tug  and  certain  ice  barges 
hauled  by  saiil  tug;  that  defendant  was  the  master  or  rap- 
tain    of   said    tug    and   in    charge    of    said    work,    defendant 

was  the  engineer  of  said  tug,  plaintiff  was  the 

fireman,  and  as  such  had  principal  charge  of  the  duty  of 
handling  the  tow  line  or  ropes,  and  on  the  occasion  aforesaid, 

the  said  crew  was  taking  two  empty  barges  from 

aforesaid,  to aforesaid,  with  said  tug.  expecting 

to  leave  one  of  said  barges  at and  to  bring  back 

the  other  of  said  barges,  with  said  tug  to  said  place  of  busi- 
ness on street,  with  a  load  of  ice.    Said  nipht  was 


PERSONAL   INJURIES  1117 

a  very  dark  night,  and  said  crew  left  at 

P.  M.  of  the ,  instead  of P.  M.  as  usual,  and  was  due 

at about  ....  o'clock  A.  M.  of  the in  the 

dark  instead  of  daylight  as  usual. 

And  the  plaintiff  avers  that  being  in  control  of  said  tug  and 
barges  and  conducting  said  business,  the  said  defendant,  the 
company,  owed  the  plaintiff,  its  fireman,  the  fol- 
lowing duties: 

1.  To  see  that  said  tug  and  barges  were  seaworthy,  prop- 
erly manned  with  competent  seamen,  agents  and  officers,  and 
equipped  with  all  appliances  necessary  for  its  use  and  for  the 
safety  of  the  crew. 

2.  To  employ  and  retain  skillful  and  competent  fellow- 
servants,  and  a  sufficient  number  of  them  to  enable  plaintiff 
to  do  his  part  of  said  work  with  reasonable  safety  to  himself. 

3.  To  furnish  reasonably  safe  appliances  for  the  use  of  the 
said  plaintiff  and  his  co-servants  in  charge  of  said  work,  includ- 
ing proper  lights  and  proper  lighting  material  to  enable  the 
plaintitY  to  see  the  situation  of  said  tug  in  case  anything  went 
wrung  and  he  was  obliged  to  work  upon  said  deck  in  the  dark- 
ness of  the  night,  and  proper  instruments  and  instrumentali- 
ties to  enable  the  master  of  the  tug  to  locate  the  tug  in  case 
it  became  stranded  in  the  mud  or  upon  shoals  or  sandbars,  or 
in  any  other  way  disabled  from  proceeding,  such  as  a  com- 
pass and  other  instrum«'nta!itit's. 

4.  To  Kupi»ly  said  tug  and  barges  with  all  the  implements 
and  instrumentalities  necessary  for  said  trip  in  view  of  the  time 
and  circumstances  under  which  said  trip  was  to  be  made, 
namely,  with  all  appliances  necessary  for  the  making  of  said 
trij)  and  the  safety  of  the  crew. 

5.  And  it  was  the  duty  of  the  remainder  of  the  defendants 
to  exercise  ordinary  care,  skill  and  diligence,  in  oj)erating  said 
ttig  and  doing  said  work  in  sueh  a  manner  as  not  to  imperil 
the  safety  of  the  i)laintiff. 

Yet,  the  said  defendant,  the company,  did  not 

regard  said  duties,  or  any  or  either  of  them,  but  wholly  dis- 
regarded each  and  every  of  the  .same,  and  carelessly  and  neg- 
ligently failed  to  furnish  a  safe  and  suitable  tow  line  with 
which  to  haul  and  draw  said  ice  barges  and  furnished  an 
unsuitable  and  dangerous  line  for  that  purpose,  and  a  line  con- 
taining kinks,  loops  and  turns  whenever  the  same  was  slackened 
or  not  stretched  out  or  not  pulling  the  barges;  and  carelessly 
and  negligently  failed  to  see  that  said  tug  and  barges  were 
seaworthy,  properly  manned  with  competent  seamen,  agents 
and  officers,  and  equipped  with  all  appliances  necessary  for 
their  proper  use  and  for  the  safety  of  the  crew  and  the  plain- 
tiff. 

.\nd  carelessly  and  negligently  faib-d  to  employ  and  retain 
skillful  and  competent  master  and  fellow-servants  and  a  suffi- 


1118  ANNOTATED   FORMS   OF   PLEADING    AND   I'RACTICK 

cient  number  of  them  to  enable  plaintiff  to  do  bis  part  of  said 
work  with  reasonable  safety  to  himself. 

And  carelessly  and  negligently  failed  to  furnish  reasonably 
safe  appliances  for  the  use  of  plaintiff  and  iiis  co-servants  in 
charge  of  said  work ;  and  carelessly  and  negligently  failed  to 
supply  said  tug  and  said  barges  with  proper  lights  and  ])ropcr 
lighting  material  to  light  the  deck  of  said  tug  when  any- 
thing went  wrong  in  the  darkness,  and  plaintiff  was  obliged 
to  work  upon  said  deck  in  such  darkness;  and  carelessly  and 
negligently  failed  to  provide  proper  implements  and  instru- 
mentalities to  enable  the  master  of  said  tug  to  locate  the 
same  when  it  became  stranded  in  mud  banks  or  ujjon  shoals 
or  sandbars,  or  in  any  other  manner  disabled  from  i)roceeding, 
such  as  a  compass. 

And  carelessly  and  negligently  failed  to  ^pply  said  tug  and 
barges  and  the  persons  in  charge  of  the  same  with  such  implc- 
nients  and  instrumentalities  as  were  necessary  for  said  trip 
in  view  of  the  time  and  circumstances  under  which  said  trip 
was  to  be  made,  namely,  failed  to  i)rovide  such  ai)pliance3 
that  were  necessary  for  the  making  of  said  trip  and  the  safety 
of  said  crew;  and  carelessly  and  negligently  retained  and 
employed  said  captain  and  engineer  who  negligently  left  their 
post  of  duty  in  the  darkness  of  the  night  when  they  knew  said 
tug   was   in   trouble   and   stranded    and    matters   were    going 

wrong;  and  carelessly  and  negligently  retained  said 

and  ,  men  whom  it  knew  were  wholly  incom- 
petent to  discharge  tiie  duties  devolving  ufxin  them. 

And  the  remainder  of  the  said  defendants  carelessly  and 
negligently  failed  to  use  ordinary  care,  diligence  and  skill  in 
operating  said  tug  and  doing  said  work,  and  did  said  work 
so  unskillfully  and  negligently  that  plaintiff's  life  and  limb 
were  imperiled  thereby. 

And  the  plaintiff  avers  that  he  had  been  directed  by  his 
superiors,   both   the   said   captain   and   »'ngiiieer,   whose  orders 

it  was  his  duty  to  obey  and  heed,  to  assist  the  said 

in  handling  the  lines  and  ropes  whenever  it  should  be  neces- 
sary; and  plaintiff  avers  that  it  is  the  duty  of  the  fireman, 
assistant  fireman,  and  any  tug  man  having  any  duty  to  per- 
form in  connection  with  the  ro{)es  or  lines,  if  they  see  any 
line  slipping  to  proceed  at  once  to  securely  fasten  the  same  to 
prevent  its  slipping,  which  duty  he  is  taught  and  the  dis- 
charge of  which  is  insisted  upon  from  the  time  he  first  enters 
upon  his  work. 
And  the  plaintiff  further  avers  that  before  said  tug  arrived 

Rt ,  it  became  stuck  in  the  raud-l)ank,  that  while 

said  tug  was  so  situated  in  said  mud-bank,  after  having  fixed 
his  fires  by  direction  of  the  engineer,  he  stepped  upon  the 
deck  of  said  tug  and  was  on  the  rear  of  the  same,  when  he 

saw  the  line  slipping  away  from  said   and  at 

once,  in  discharge  of  his  duty  as  it  had  been  taught  him  for 


PERSONAL   INJURIES  1119 

more  than  a  score  of  years,  he  went  to  the  assistance  of  said 

and  attempted  to  secure  said  line  or  rope;  that 

at  said  time,  by  direction  of  said  captain,  one  of  said  barges 
was  placed  in  front  of  said  tug  and  one  behind,  and  it  was  the 
one  that  was  behind  whose  line  was  slipping  and  which  line 
plaintiff  was  trying  to  secure. 

And  the  plaintiff  avers  that  at  the  time  he  went  to  the 

assistance   of  said    he   had  no  knowledge  that 

either  the  engineer  or  master  of  said  tug  had  left  his  post  of 
duty,  and  plaintiff  in  the  darkness  of  the  night,  was  upon  the 

deck  of  said  tug  and  attempting  to  assist  said to 

secure  said  line,  which  held  said  rear  ice  barge,  and  which 
barge  was  being  pushed  away  from  said  tug  by  the  force  of 
the  waves  made  by  the  current  of  the  wheel  forming  part  of  said 
tug,  and  the  plaintiff  in  the  darkness  aforesaid,  for  want  of 
suitable  lights  to  light  said  dark,  and  want  of  a  proper  tow 
line  to  hold  said  barge,  was  caught  in  the  kinks  and  loops  of 
said  rope  and  pulled  twice  around  the  post  in  the  rear  of  the 
cabin  of  said  tug  by  said  rope,  and  had  his  left  leg  crushed 
and  mangled  to  such  an  extent  that  it  became  necessary  to 
amputate  the  same  between  the  hip  and  knee,  nearer  the  hip 
than  knee. 
And  the  plaintiff  avers  that  said  injury  could  not  have  taken 

place  had  said    and    remained  at 

their  post  and  had  said been  competent  to  prop- 
erly fasten  said  rope  or  line;  neither  could  it  have  happened, 
had  said  tug  been  supplied  with  proper  implements  and  in- 
strumentalities, including  proper  tow  lines  and  lights.  And 
the  plaintiff  avers  that  he  was  ignorant  of  the  incompetency  and 
carelessness  of  the  said  assistant  fireman,  and  the  carelessness 
and  incompetency  of  the  said  master  and  engineer,  and  the  said 

defendant    the    company    as    chargeable    with 

notice  thereof. 

And  the  plaintiff  avers  that  by  reason  of  the  premises  and 
by  reason  of  being  pulled  about  said  post,  while  held  by  said 
dangerous  tow  line,  he  became  sick,  sore,  lame  and  disordered 
for  life;  that  he  has  permanently  lost  his  said  leg  and  has 
suffered  indescribable  pain  and  distress,  and  will  have  to  go 

through  life  on  one  limb ;  that  he  was  at  the  time   

years  of  age  and  had  followed  firing  on  tugs  twenty  odd  years, 
and  has  no  trade  he  can  follow  in  his  present  condition ;  that 
he  has  lost  his  time  from  thence  hitherto,  and  been  put  to 
great  expense  in  trying  to  be  cured  of  his  injuries;  that  on 
account  of  his  expenses,  and  loss  of  earnings,  present,  past  and 
future,  and  on  account  of  the  permanent  loss  of  said  limb, 
and  the  misery  and  suffering  he  has  endured  he  claims  dam- 
ages at  the  hands  of  the  said  defendants  in  the  sum  of  fifteen 
thousand  dollars. 

2.  And  for  that  whereas,  on  the  day  and  date  aforesaid,  and 
under  the  circumstances  aforesaid,  and  while  in  the  employ 


1120  ANNOTATED   FORMS  OP   PLEADING   AND    PRACTICE 

of  the  said  defendant,  the company  as  aforesaid, 

the  plaintiff  was  injured  under  the  circumstances  more  fully 
set  forth  in  count  one  of  this  declaration,  which  said  count 
one  is  hereby  incorporated  into  count  two  so  far  as  the  same 
describes  the  circumstances  surrounding  the  i)laintirt"s  in- 
jury and  the  causes  leading  up  to  the  injury  antl  from  which 
said  injury  resulted.  And  plaintiff  hereby  re(iuests  permis- 
sion to  incorporate  said  allegations  in  said  count  one  into  this 
count;  and  further  avers  that  he   was  injured  while  in  the 

employ  of  the  defendant,  the   company,  on  the 

....  day  of ,  19 . . ,  in or  , 

near    ,     county,    Michigan,    while 

under  the   directions  and   orders  of   ,   who  was 

master  of  the  tug ;  that  without  fault  or  negli- 
gence on  his  part,  and  wholly  by  reason  of  the  negligence  and 

default  of  the  said  defendant,  the company,  who 

owned  and  operated  said  tug,  and  the  master  thereof,  plaintiff 
sustained  injuries  resulting  in  the  loss  of  his  left  leg,  which 
said  injuries  he  received  in  the  i)t'rformance  of  his  duty. 

And  the  plaintiff  avers  that  by  reason  of  tiie  premises  and 
by  reason  of  the  fact  that  said  tug  was  to  make  a  trip  from 

to in  the  darkness  of  the  niglit,  and 

by  reason  of  the  fact  that  said  tug  might  become  stranded 
in  the  darkness,  it  became  and  was  the  duty  of  the  said  defend- 
ants to  provide  said  tug  with  means  of  cure  and  with  such 
articles  and  things  as  would  enable  plaintilT  and  his  asso- 
ciates to  provide  temporary  means  of  n-lii-f  in  case  of  injury 
or  misfortune,  to  wit,  to  provide  said  tug  with  such  moans 
and  instrumentalities  and  medicines  and  other  things  as  would 
enable  plaintiff  and  his  associates  to  provide  temporary  relief. 
And  the  plaintiff"  avers  that  being  ill  and  injured  as  afore- 
said, while  in  the  performance  of  his  duty,  it  was  incumbent 
upon  the  defendant,  the company,  and  the  defend- 
ant,     ,   master  of  said   tug,   to  furnish   means   of 

cure,  and  to  use  all  reasonable  exertions  for  that  purpose.  It 
became  their  duty  to  provide  medicine  and  medical  treat- 
ment, and  to  see  to  it  that  he  was  properly  lodged,  properly 
nursed,  and  properly  provided  with  food;  and  this  obligation 
was  incumbent  upon  them  so  long  as  the  same  was  neces- 
sary to  effect  a  cure ;  and  if  such  medical  and  surgical  treat- 
ment as  his  condition  required  could  not  be  given  on  board 
the  tug,  the  same  being  only  a  short  distance  from  port  Avhere 
such  treatment  could  be  given,  it  became  and  was  the  duty  of 
the  said  defendants  to  at  once  put  him  to  port. 

Yet,  the  said  defendants,  the    company,  and 

,  wholly  failed  to  discharge  each  and  every  of  the 

said  duties;  and  he  avers  that  being  mangled  as  aforesaid,  he 
requested  and  implored  to  be  immediately  put  to  shore  and 
be  provided  with  a  physician  to  attend  him,  which  said 
proper  and  reasonable  request  was  declined,  neglected  and 


PERSONAL   INJURIES  1121 

refused,  and  plaintiff  was  detained  on  said  tug  for  a  period 

of  five  hours  within  a  few  miles  from  the  city  of 

and  a  couple  of  hours'  ride  from  the  city  of   , 

without  any  nursing,  care  or  aid  whatever,  during  all  of  which 
time  he  suffered  great,  excruciating  and  untellable  pain  and 
distress,  and  suffered  severely  from  loss  of  blood ;  and  during 
all  of  which  time  he  was  provided  with  no  temporary  relief, 
care,  treatment  or  nursing  whatever,  and  instead  of  abandon- 
ing said  ice  barges  and  taking  plaintiff  to  shore  where  he  could 
obtain  relief,  he  was  cruelly  detained  upon  said  tug  until  the 

ice  barges  had  been  securely  placed  at  the  dock  at 

to   be   loaded   with   ice,    after  which   time   said   captain   and 

engineer  attempted  to  bring  plaintiff  to   to  be 

delivered  at  the over  the railway 

branch  of  the    without  calling  a  physician  to 

attend  him. 

And  the  plaintiff  avers  that  by  reason  of  said  cruelty  and 
neglect  after  the  receipt  of  said  injuries,  and  on  account  of 
the  want  of  proper  means  and  safeguards  to  provide  tem- 
porary means  in  case  of  injury,  he  sustained  and  suffered  many 
hours  of  pain  and  distress  which  would  have  been  wholly  un- 
necessary had  said  safeguards  been  provided,  and  had  he  not 
been  neglected  after  said  injury  was  received,  and  had  his 
needs  not  been  postponed  and  neglected  until  the  ice  barges 

were  placed  at  the  dock  at ,  on  account  of  which 

unnecessary  suffering  and  cruel  neglect  plaintiff  claims  dam- 
ages from  the  said  master  of  said  tug,  and  the 

company,  in  addition  to  the  damages  claimed  in  the  first  count 

of  this  declaration  in  the  sum  of dollars.     And 

the  plaintiff  avers  that  he  would  have  been  brought  to , 

in  his  suffering  condition,  and  his  injuries  would  probably  have 
proven  fatal,  except  for  the  conductor  in  charge  of  the  car, 
who  caused  him  to  be  taken  from  said  car  and  placed  in  the 
care  of  a  physician  when  it  arrived  at  the  city  of 

And  the  plaintiff  avers  that  by  reason  of  the  premises  he 
claims  damages  in  the  amount  aforesaid,  and  therefore  brings 
suit,  etc. 

1640  Wrongful  death,  action,  nature 

A  right  to  maintain  an  action  against  a  party  who  causes 
the  death  of  another  by  wrongful  act,  neglect  or  default,  is 
statutory,  for,  at  common  law,  no  such  action  was  maintain- 
able.-^^  In  Illinois,  an  action  for  death  resulting  from  a  wrong- 
ful act  is  maintainable  if  the  wrongful  act  was  committed  or 
omitted  in  the  state,  although  the  death   followed  in  another 

2«3  Crane  t.  Chicago  &  "Western 
Indiana  R.  Co.,  233  111.  259,  262 
(1908). 


1122  ANNOTATED   FORMS  OF  PLEADING   AND   PRACTIC-E 

state,  because  the  wrongful  act,  and  not  the  death  constitutes 
the  cause  of  action.^** 

1641  Wrongful  death,  action,  distinctions 

In  Michigan,  in  case  injuries  result  in  death,  the  personal 
representative  has  a  single  remedy,  depending  upon  the  death 's 
proximity  to  the  injury.  If  the  death  is  instantaneous,  the  action 
must  be  brought  under  the  Death  act  for  the  benetit  of  the  next 
of  kin,  and  recovery  can  only  be  had  for  the  pecuniary  loss. 
If  the  death  is  not  instantaneous,  the  action  must  be  based  upon 
the  Survival  act,  brought  for  the  same  persons,  and  recovery 
may  be  had  for  the  full  measure  of  damages.  In  either  case, 
however,  it  is  permissible  to  join  counts  under  both  acts,-^' 
So,  in  Illinois,  a  clear  distinction  has  been  established  between 
a  cause  of  action  existing  under  the  Death  statute  and  an  action 
maintainable  under  the  Survival  statute.  This  distinction  is 
that  the  first  act  gives  a  new  right  of  action  to  the  administrator, 
which  at  common  law,  terminated  at  death,  while  the  second  act 
merely  continues  an  existing  action  or  right  of  action  which 
would  have  abated  but  for  such  statute.^^s  A  further  distinc- 
tion is  that  the  damages  under  the  Death  act  are  exclusively 
the  property  of  the  next  of  kin,  the  personal  representative 
acting  solely  as  trustee  for  them  in  their  recovery,  whereas 
the  damages  recoverable  under  the  Survival  act  belong  to  the 
estate.247  An  action  for  personal  injuries  on  behalf  of  the  widow 
and  next  of  kin  is  maintainable  against  a  wrongdoer  or  his 
personal  representatives  under  the  Survival  act  of  Illinois, 
whether  the  person  injured  or  the  wrongdoer,  or  both  die  before 
judgment,  the  only  cause  of  action  surviving  being  that  in 
favor  of  the  widow  and  next  of  kin.2<» 

1642  Wrongful  death,  notice 

No  notice  to  a  municipality  is  necessary  to  the  institution  of 
an  action  for  wrongful  death,  as  such  an  action  is  not  for  per- 
sonal injuries  within  the  meaning  of  the  statute  which  requires 

2««  Crane   v.    Chicago    &   "Western  2«t  Holton  v.   Daly,   106  HI.   137; 

Indiana  R.  Co.,  supra.  Chicago,  Peoria  &  St.  Louis  R.  Co. 

245Dolson  V.  Lake  Shore  &  Mich-  v.     Woolridge,     174     111.     330,     334 

igan    Southern    Ry.    Co.,    128    Mich,  (1898). 

444,  454  (1901).  248  Devine   v.    Healj,    241    111.    34 

248  Chicago  &  Eastern   Illinois  R.  (1909). 
Co.   V.    O'Connor,    119   111.   586,    594 
(1887) ;  Holton  v.  Daly,  106  111.  131, 
140  (1882). 


PERSONAL  INJURIES  1123 

notice  of  personal  injuries  to  be  given  to  a  municipality  as  a 
condition  precedent  to  the  bringing  of  an  action  against  it.^^s 

BILL  OF  PAETICULAES 

1643  Motion  (111.) 

250  jv^Q^  comes  the  defendant,  by  ,  his  attor- 
ney, and  moves  the  court  for  a  rule  on  the  plaintiff  to  file  a  bill 
of  particulars  as  to  the  directions  in  which  said  plaintiff  and 
said  car  were  respectively  going  on  the  occasion  in  ques- 
tion. Without  the  information  above  prayed  for  it  will  be 
unsafe  for  the  defendant  to  proceed  to  the  trial  of  said  cause. 

1644  Bill  of  particulars  (Md.) 

This  action  is  brought  under  the  provisions  of  article  67, 
Code  of  the  Public  General  laws,  sections  1,  2,  3  and  4,  and 
all    additions    and    amendments    thereto    for    the    benefit    of 

,    the   father   of    ,   who   was   killed 

while  a  passenger  on  the  car  of  the  defendant  company,  on 

,  19 .  . ,  at  or  near   station,  in  the  state 

of  Maryland,  by  reason  of  said  car  colliding  with  another 
car  of  the  said  defendant,  through  the  negligence,  want  of  care 
and  default  of  the  defendant,  its  officers,  servants  and  agents 
in  the  premises,  and  without  the  negligence  or  want  of  care 
on  the  part  of directly  thereto  contributing. 

The  said  deceased  was  a  vigorous,  active  young  man,  under 
the  age  of  years,  in  sound  bodily  health,  fol- 
lowing   the    wholesale    and    retail    business    in 

,  for  and  on   account   of  the  equitable  plaintiff 

from  which  he  derived  a  large  revenue,  and  from  which  the 
equitable  plaintiff,  his  wife,  and  family  received  maintenance 

and   support ;   that   the   death   of    was   directly 

caused  by  the  negligence,  default  and  want  of  care  of  the 
defendant,  its  officers,  servants  and  agents  in  the  premises, 
and  without  the  negligence  or  want  of  care  upon  the  part  of 
the  deceased  directly  thereto  contributing. 

DEMURRER 

1645  Form  (Va.) 

Now  comes  the  defendant  by  its  attorneys  and  demurs  to 
the  plaintiff's  said  declaration,  because  the  same  is  insufficient 
in  law,  and  for  ground  of  demurrer  says: 

1.  That  the  said  declaration  does  not  state  with  sufficient 
particularity  and  clearness  the  acts  of  negligence  on  the  part 

2*9  Prouty  V.  Chicago,  250  111.  222,  25°  Precede  this  by  plea  of  general 

226,  230  (1911);  Laws  1853,  p.  97;       issue. 
Sec.     2,    Cities     and     Villages    act 
(Kurd's  Stat.,  1909,  c.  70). 


1124  ANNOTATED   FORMS  OF  PLEADING  AND   PRACTICE 

of  the  defendant  company  to  enable  it  to  understand  the  nature 
of  the  charge  it  is  called  upon  to  answer. 

2.  That  the  declaration  does  not  state  sufficient  facts  to 
enable  the  court  to  say  upon  demurrer  whether  if  the  facts 
stated  are  proved  the  plaintiff  is  entitled  to  recover  in  this 
action. 

3.  That  the  declaration  contains  only  a  statement  in  gen- 
eral terms  of  the  cause  of  action,  and  general  averments  of 
negligence  on  the  part  of  the  defendant  which  are  not  suffi- 
cient. 

4.  (State  any  other  ground  that  might  be  applicable) 

And  the  said  defendant  prays  judgment  upon  its  said 
demurrer. 

SPECIAL  DEFENSES,  PLEAS,  ETC. 
ASSUMED   RISK 

1646  Origin  of  doctrine 

The  doctrine  of  assumed  risk  was  first  declared  in  this  coun- 
try in  1842,  and  is  predicated  upon  the  contractual  relation  of 
master  and  servant  and  not  upon  the  maxim  Volenti  nan  fit 
injuria.  (He  who  consents  cannot  in  law  receive  an  injury)  251 
Therefore  this  defense  cannot  he  urged  where  the  relation  of 
master  and  servant  is  forbidden  by  law.252 

1647  Doctrine  of  assumed  risk 

An  employee  assumes  all  of  the  usual  known  dangers  incident 
to  the  employment,  and  takes  upon  himself  the  hazard  of  the 
use  of  defective  tools  and  machinery',  which,  after  his  employ- 
ment, he  knows  to  be  defective,  or  might  have  known,  had  he 
exercised  due  care,  but  voluntarily  continues  in  the  employment 
without  objection,  and  the  danger  is  such  that  a  person  of 
ordinary  intelligence  would  know  what  would  naturally  follow 
from  the  defect,-^^  unless  the  continuance  in  the  work  is  under 
a  promise  to  repair  at  a  fixed  time  or  within  a  reasonable  time 
if  no  definite  time  is  fixed,  and  the  defect  is  not  such  as  to  so 
endanger  the  person  of  the  employee  that  a  prudent  man  would 
not  continue  to  work  under  the  same  circumstances.254 

251  Streeter    v.    Westeni    Wlieeled  Montgomery  Coal  Co.  v.  Barringer, 

Scraper  Co.,  254  111.  254,  255;  Dalra  218  111.  327,  331  (1905);  Schillinger 

V.  Bryant  Paper  Co.,  157  Mich.  550,  Bros.   Co.  v.   Smith,   2'^5  111.   74    77 

554  (1909);  O'Rourkev.  Sproul,  241  (1907);     Gunning    System    v.    La- 

lU.  576,  580  (1909);  Shoninger  Co.  pointe,    212    111.    274,    279    (1904)- 

V.    Mann,    219    111.    246;    Mueller   v.  Elgin,   Joliet   &   Eastern  Ry    Co    v 

Phelps,  252  111.  630,  634  (1912).  Myers,  226  111.  358,  364,  366  (1907).' 

252Dalm    V.    Bryant    Paper    Co.,  =54  Gunning    System    v.    Lapointe, 

supra.  supra;    Morden    Frog    &    Crossing 

253  Illinois  Central  R.  Co.  v.  Fitz-  Works  v.    Fries,    228   111    246    250 

Patrick,   227   111.    478,   483    (1907);  (1907). 


PERSONAL   INJURIES  1125 

1648  Scope  of  doctrine,  law  and  fact 

The  foregoing  rule  applies  to  dangers  which,  are  in  contempla- 
tion at  the  time  of  the  hiring  and  to  those  which  arise  and  become 
known  to  the  employee  during  service,-^^  and  which  are  obvious 
and  apparent,-^*^  or  which  are  so  obvious  that  knowledge  of  their 
existence  can  be  fairly  presumed.  The  presumption  of  knowl- 
edge does  not  extend  to  dangers  which  are  not  obvious,  which 
arise  solely  out  of  extraordinary  or  exceptional  circumstances,^^? 
and  with  which  the  employee  is  suddenly  confronted.  In  such 
case,  it  ordinarily  rests  with  the  jury  to  say  whether  the  employee 
acted  with  sufficient  promptness  and  with  such  care  for  his 
personal  safety  in  extricating  himself  as  a  reasonable  man 
should  have  acted  under  similar  circumstances.^^s  ^j^  employee 
assumes  a  risk  where  the  particular  defects  in  the  appliances  or 
the  conditions  connected  with  the  particular  services  in  which 
he  is  engaged  are  equally  known  to  him  and  the  employer,  and 
he  continues  in  the  service  \vithout  complaint  and  without  any 
promise  from  the  employer  to  remedy  such  defects.^^a 

1649  Presumptions 

The  employee  has  a  right  to  presume  that  his  employer  will 
exercise  care  and  prudence  to  prevent  the  exposure  of  his  em- 
ployees to  unreasonable  risks  or  dangers.-'^'^  So,  the  employer 
has  a  right  to  assume  that  an  employee  of  mature  years  is  pos- 
sessed of  ordinary  mental  faculties,  of  the  usual  powers  of  obser- 
vation, and  of  such  knowledge  as  is  acquired  by  common  experi- 
ence.-*^^ 

1650  Promise  to  repair,  law  and  fact 

Upon  a  promise  to  repair,  the  employee  is  relieved  from  the 
assumption  of  risk  of  the  employment  for  such  a  time  as  is  rea- 
sonably necessary  to  enable  the  employer  to  remedy  the  danger, 
unless  it  is  so  obvious  and  imminent  that  no  man  of  ordinary 

253  Ross  V.    Chicago,   Rock    Island  259  Jenco  v.  Illinois  Steel  Co.,  233 

&  Pacific  Ry.  Co.,  243  111.  440,  444  111.  301,  306  (1908). 

(1910).  200  McCulloch  v.  Illinois  Steel  Co., 

250  Postal   Telegraph-Cable   Co.   v.  243  111.   464,  469    (1910);   Superior 

Likes.  225  111.  249,  261   (1907).  Coal  &  Mining  Co.  v.  Kaiser,  229  111. 

25T  McCulloch  V.  Illinois  Steel  Co.,  29,  33  (1907). 

243   111.  464,   469    (1910);    Hansell-  201  Illinois  Central  R.  Co.  v.  Swift. 

Elcock  Foundry  Co.  v.  Qark,  214  111.  213  111.  307,  315   (1904). 
399,  406,  410  "(1905). 

258  Asmossen  v.  Swift  &  Co.,  243 
lU.  93,  97  (1909). 


1126  ANNOTATED   FORMS   OP    PLEADING    AND    PRACTICE 

prudence  would  engage  in  the  work,  or  uuless  the  defects  in 
tools  or  appliances  are  of  a  construction  with  which  the  servant 
is  as  familiar  as  the  employer  ;2<52  and  whether  the  danger  is 
of  such  character  and  whether  the  employee  continued  longer 
than  was  reasonably  necessary  to  enable  the  conditions  to  be 
remedied  are  questions  of  faet.^os  An  employee's  complaint  of  a 
defect  and  notice  to  the  employer  must  be  on  account  of  an 
apprehension  of  danger  to  the  employee  giving  the  notice  or 
making  the  complaint,  and  he  must  have  an  intention  to  quit 
work  unless  the  defect  is  remedied ;  but  it  is  not  necessary  that 
he  should,  in  terms,  declare  such  an  intention.*^* 

1651  Unknown  risks 

An  emplo3'ee  does  not  assume  risks  which  are  unknown  to 
him  and  are  known  to  the  employer,  and  which  could  not  have 
been  known  to  the  employee  by  the  exercise  of  reasonable  care, 
and  which  could  have  been  avoided  by  the  employer  by  exercising 
reasonable  care  on  his  partj^es  nor  does  he  assume  unusual 
dangers  which  are  naturally  incident  to  the  employment  but 
of  which  the  employee  is  not  cognizant  ;2«o  nor  dangers  which 
are  not  ordinarily  incident  to  the  service.^s^ 

1652  Obeying  command 

Nor  does  an  employee  assume  a  risk  when  he  is  directed  to 
encounter  a  danger  by  the  order  of  the  employer  or  of  men 
who  stand  in  that  relation,  and  he  obeys,  unless  the  danger  is  so 
great  that  an  ordinarily  prudent  person  would  not  have  en- 
countered it.268  So,  an  employee  may  recover  for  an  injury 
which  results  from  the  carrjnng  out  of  a  specific  direction  given 
by  a  superior  to  do  a  work  in  a  dangerous  manner,  unless  the 
danger  is  so  imminent  that  a  reasonably  prudent  man  would 

262  Scott  V.  Parlin  &  Orendorff  ,Co.,      son  v.   Desmond  Chemical   Co.,   152 
245  111.  460,  469   (1910);  Cromer  v.       Mich.  84,  89  (1908). 

Borders  Coal  Co.,  246  111.  451,  456  268  Elgin,  Joliet  &  Eastern  K7.  Co. 

(1910),  V.    Myers,    226    111.    358,    364,    366 

263  Scott  V.  Parlin  &  Orendorflf  Co.,  (1907);    Spring^eld   Boiler  &   Mfg. 
245  111.  469.  Co.     v.     Parks,     222    111.     355,    359 

264  Morden  Frog  &  Crossing  Worka  (1906) ;  Henrietta  Coal  Co.  v.  Camp- 
V.  Fries,  228  111.  251.  bell,  211  111.  216,  226  (1904);  Ken- 

265  Kenny    v.    Marquette    Cement  nedy  v.    Swift   &  Co.,   234  111.   606 
Co.,  243  111.  396,  402  (1910).  609   (1908)  ;  Cheneweth  v.  Burr   242 

268  Henrietta  Coal  Co.  v.  Campbell,  111.  312,  318  (1909) ;  Wells  &  French 

211  111.  216,  226  (1904).  Co.  v.  Kapaczynski,  218  111.  149,  152 

267  Mobile  &  Ohio  R.  Co.  t.  Val-  (1905). 
lowe,  214  111.  124,  129  (1905)  ;  John- 


PERSONAL   INJURIES  1127 

not  incur  it ;  but  an  employee  cannot  recover  where  he  is  given 
a  general  order  to  perform  a  task  and  he  is  to  use  his  own  dis- 
cretion as  to  the  manner  in  which  the  work  shall  be  done,  and 
where  there  exists  a  safe  and  a  dangerous  way  which  are  equally 
open  to  him  and  he  selects  the  unsafe  method  through  heedless- 
ness, or  because  it  involves  less  exertion  on  his  part.^^^ 

1653  Dangerous  place 

Employees  whose  duty  is  to  make  dangerous  places  safe  assume 
the  additional  hazard  of  their  employ ment-^"*^ 

1654  Ordinary  tools 

An  employee  assumes  a  risk  for  an  injury,  even  under  a 
promise  to  repair,  from  an  instrument  which  is  simple  in  char- 
acter and  which  resuires  no  special  skill  or  experience  to  enable 
him,  at  a  glance,  to  comprehend  the  possible  dangers,  if  any, 
that  might  result  from  its  use.^^^ 

1655  Personal  and  statutory  duties 

Ordinarily,  the  neglect  of  an  employer  to  perform  his  per- 
sonal duties  is  not  a  peril  that  an  employee  assumes j^^s  ^^t  \^q 
does  assume  the  risk  if  he  continues  in  the  service  without  com- 
plaint or  excuse  and  with  knowledge,  or  with  the  means  of  knowl- 
edge, of  the  particular  neglect  and  the  consequent  danger.^^s 
An  employee  does  not  assume  a  risk  which  arises  from  the 
employer's  negligent  performance  of  a  statutory  duty  imposed 
upon  him  for  the  protection  of  his  employees.-"*  Thus  the 
defense  of  assumed  risk  is  inapplicable  to  actions  which  are 
based  upon  the  Mining  act.^^^  So,  in  Michigan,  the  owner  and 
operator  of  a  mine  cannot  shield  himself  from  liability  for  an 
injury  resulting  from  a  violation  of  a  duty  imposed  upon  him 
by  statute,  under  the  defense  of  assumption  of  risk  or  that  of 
negligence  of  a  fellow-servant,  because  this  statute  is  prohibi- 

269  Illinois  Central  R.  Co.  v.  Swift,  chine  Co.  v.  Zakzewski,  220  111.  522, 

213   111.   307,   316    (1904);    Kath   v.  530  (1906). 

East  St.  Louis  &  Suburban  Ky.  Co.,  274  Campbell     v.     Chicago,     Eock 

232  111.  126,  134  (1908).  Island   &   Pacific    Ry.    Co.,    243    lU. 

2T0  Kelly^ille   Coal  Co.  v.  Bruzaa,  620,  625    (1910);  Kleinfelt  v.  Som- 

223  111.  595,  601  (1906).  ers  Coal  Co.,    156    Mich.    473,    478 

2T1  Kistner     v.     American     Steel  (1909). 

Poundries,  233  111.  35,  38  (1908).  zts  Waschow  v.  Kelly  Coal  Co.,  245 

2T2  Chicago  Union  Traction  Co.  v.  111.  516,  521  (1910)  ;  Kellyville  Coal 

Sawusch,  218  111.  130,  134  (1905).  Co.  v.  Strine,  217  111.  516,  527,  528 

2"  McCormick      Harvesting      Ma-  (1905). 


1128  ANNOTATED  FORMS  OP  PLEADING  AND  PRACTICE 

tive  in  its  nature,  making  a  violation  of  it  actionable  and  is  not 
the  mere  enactment  of  the  common  law  rule  that  only  reason- 
able care  and  diligence  is  required  to  excuse  negligence.-^®  The 
voluntary  continuance  in  the  service  amounts  to  an  assump- 
tion of  risk  when  the  employee  has  notice  of  the  employer's 
failure  to  perform  his  personal  duty,  or  when  the  unsafe  condi- 
tion is  so  apparent  as  to  be  obvious  to  a  person  of  ordinary 
intelligence.-'^ 

But  an  employee  who  continues  in  the  service  of  an  employer 
with  knowledge  of  the  latter 's  violation  of  a  statute  which  was 
passed  for  the  employee's  protection,  does  not  assume  the  risk  in- 
cident to  such  a  violation.-^s  Any  contract  with  an  employee 
having  the  effect  of  relieving  the  employer  of  liability  for  in- 
juries resulting  from  risks  incurred  by  the  violation  of  duties  im- 
posed by  law  is  against  public  policy  and  void.-^"* 

1656  Minors 

The  doctrine  of  assumed  risk  is  inapplicable  to  employees  who 
from  youth  or  want  of  natural  faculties  are  unable  to  appreciate 
a  danger  incident  to  the  employment  or  which  may  result  from 
the  continued  use  of  defective  machinery  or  tools.- ^"^ 

1657  Pleading,  general  issue 

Evidence  of  assumed  risk  may  be  given  under  the  general  issue 
and  the  question  may  be  raised  by  an  instruction  based  upon 
ffuch  evidence.281 

1658  Law  and  fact 

The  assumption  of  risk  is  a  question  of  fact  which  is  to  be  sub- 
mitted under  proper  irstructions,^**-  where  the  evidence  is  con- 
flicting, or  where  reasonable  minds  may  legitimately  draw  dif- 
ferent conclusions  from  the  undisputed  facts  established  by 
them.283 

2T6  Layzell    v.    Somers    Coal    Co.,  ssi  Elgin,  Jollet  &  Eastern  Ry.  Co. 

156  Mich.  268,  282  (1909).  v.  Myers,  226  111.  358,  367   (1907); 

277  Bonato  v.  Peabody  Coal  Co.,  Layzell  v.  Somers  Coal  Co.,  156  Mich. 
248  111.  422,  425  (1911).  270. 

278  Streeter  v.  Western  Wheeled  282  Bonato  v.  Peabody  Coal  Co., 
Scraper  Co.,  254  111.  248.  248  111.  426. 

279  Campbell  v.  Chicago,  Rock  283  Sturm  v.  Consolidated  Coal  Co., 
Island  &  Pacific  Ey.  Co.,  supra.  248  111.  20,  27   (1910). 

280  Siegel,  Cooper  &  Co.  v.  Trcka, 
218  lU.  559,  566  (1905). 


PERSONAL   INJURIES  1129 

CONTRIBUTORY  NEGLIGENCE 

1659  Doctrine 

A  party  who  last  has  a  clear  opportunity  to  avoid  the  injury, 
notwithstanding  the  negligence  of  his  opponent,  is  considered 
solely  responsible  for  it,^^^  and  it  is  a  good  defense  to  an  action 
for  personal  injuries  that  the  plaintiff  was  guilty  of  contributory 
negligence.285  The  injured  party  cannot  be  charged  with  con- 
tributory negligence,  although  his  own  negligence  exposed  him  to 
the  risk,  if  the  proximate  cause  of  his  injury  was  the  result  of 
the  defendant's  failure  to  use  ordinary  care  to  avoid  the  injury 
after  becoming  aware  of  the  danger  sufficiently  to  put  a  pru- 
dent man  on  the  alert.^se  The  defense  of  contributory  negli- 
gence, except  where  the  negligence  is  wilful  or  reckless,  has  been 
abolished  in  Mississippi.^sT 

1660  Rules  of  employment 

It  is  usually  negligence  for  an  employee  to  violate  a  known 
rule  of  employment,  unless  the  rule  is  rendered  inoperative  by 
its  habitual  violations  with  the  knowledge  and  the  acquiescence 
of  the  employer.288 

1661  Minors,  brother's  negligence 

It  is  no  defense  to  an  action  by  a  minor  for  personal  injuries 
that  his  brother's  negligence  contributed  to  the  in  jury. ^89 

1662  Minors,  parent's  negligence 

The  doctrine  of  contributory  negligence  has  no  application  to 
an  action  for  personal  injuries  brought  by  a  child  under  the 
employment  age.^^o  A  child  under  seven  years  of  age  cannot 
be  charged  with  contributory  negligence,  nor  can  the  parents' 
negligence  be  imputed  to  a  child  of  tender  years  who  is  injured 
by  the  negligence  of  another.^^i 

284  Kellrv'ille  Coal  Co.  v.  Strine,  2*8  Kenny  v.  Marquette  Cement 
217  111.  529.  Mfg.  Co.,  243  lU.  396,  403  (1910). 

285  Mobile  &  Ohio  R.  Co.  v.  Val-  28o  Ferryman  v.  Chicago  City  Ey. 
lowe,  214  111.  128.  Co.,  242  111.  269,  274  (1909). 

286  Star  Brewery  Co.  v.  Hauck,  222  290  American  Car  &  Foundry  Co. 
111.  348,  350  (1906);  United  Rys.  &  v.  Armentraut,  214  111.  509,  513 
Electric  Co.  v.  Kolken,  114  Md.  160,  (1905). 

168  (1910);  Strong  v.  Grand  Trunk  291  Richardson  v.  Nelson,  221  111. 

W.  Ey.  Co.,  156  Mich.  66,  75  (1909).  254,  257  (1906) ;  Illinois  Central  B. 

287  Welsh  V.  Alabama  &  Vieksburg  Co.  v.  Warriner,  229  111,  91,  95 
Ey.  Co.,  70  Miss.  20,  25  (1892).  (1907). 


1130  ANNOTATED   FORMS  OF  PLEADING   AND   PRACTICE 

1663  Mining  act 

The  defense  of  contributory  negligence  is  not  available  in  an 
action  under  the  Mining  act.2»2 

1664  Railroad  crossing,  negligence 

In  Michigan,  a  railroad  is  regarded  as  a  warning  of  danger, 
requiring  ever>'  person  who  ventures  upon  the  track  to  make  an 
effort  to  ascertain  whether  a  train  is  approaching,  and  if  either 
one  of  the  senses  of  seeing  or  hearing  is  defective,  the  obligation 
to  use  the  other  is  stronger;  the  failure  to  make  such  an  effort 
is  of  itself  negligence  as  a  matter  of  law.-^^  jjj  Illinois,  a  person 
crossing  a  railway  track,  or  approaching  it  with  intent  to  cross 
it,  is  required  to  exercise  ordinary  care  and  prudence  to  avoid 
injury,  and  what  will  constitute  ordinary  care  in  any  given 
instance,  depends  upon  the  particular  circumstances.  The  mere 
failure  to  look  and  listen  is  not  negligence  per  se,  but  are  cir- 
cumstances to  be  considered  in  determining  the  question  of  ordi- 
nary care.2®* 

1665  Pleading  and  practice 

The  defendant's  contributory  negligence  is  provable  under 
the  general  issue  ;-^^  and  this  defense  may  be  raised  by  an  instruc- 
tion for  a  directed  verdict.^'^^ 

1666  Plea  (Fla.) 

And  for  a  further  plea  the  defendant  says  that  the  supposed 
injury  mentioned  by  the  plaintiff  in  and  by  his  declaration 
was  caused  by  the  plaintiff's  own  negligence. 

(Mississippi) 

That  the  said  plaintiff  by  his  own  negligence  contributed 
to  the  said  injuries  complained  of,  in  this,  that  (Set  forth  spe- 
cial circumstances)  and  in  so  doing  incurred  great  and  unnec- 
essary hazard  and  received  the  said  injuries  complained  of. 
(Pray  judgment) 

292Hougland    v.    Avery    Coal    &  Ey.   Co.  v.   Wilson,   133  111.   55,   60 

Mining  Co.,  246  111.  609,  616  (1910);  (1890);    Partlow  v.  Illinois  Central 

Waschow  V.  Kelly  Coal  Co.,  supra;  R.    Co.,    150    111.    321,    327    (1894), 

Kellyville  Coal  Co.  v.  Strine,  217  111.  limiting    Illinois   Central    R.    Co.    v. 

516,  523,  527;   Mertens  v.  Southern  Godard,    72    111.    567     (1874)     and 

Coal  &  Mining  Co.,  235  111.  540,  546  similar  cases. 

(1908).  295  Winter  v.  United  Rys.  &  Elec- 

293Folkmire   v.    Michigan    United  trie  Co.,  115  Md.  69  (1911). 

Bys.  Co.,  157  Mich.  159,  166  (1909).  29«  Mueller  v.  Phelps,  252  111.  633. 

3Bi  Chicago,  Milwaukee  &,  St.  Paul 


PERSONAL  INJURIES  1131 

Replication  (Miss.) 

That ,  decedent,  was  not  guilty  at  the  time  of 

the  injury,  etc.,  of  contributory  negligence  and  gross  care- 
lessness set  up  in  defendant 's  special  plea ;  and  as  to  this,  the 
plaintiff  puts  himself  upon  the  country. 

New  Assignment  (Miss.) 

Now  came  the  plaintiffs  after  leave  of  court,  first  had  and 
obtained  and  say  that  while  still  disclaiming  any  contribu- 
tory negligence  or  gross  carelessness  on  the  part  of , 

decedent,  that  they  ought  not  to  be  barred  by  the  contribu- 
tory negligence  set  up  in  defendant  company's  special  plea, 
for  plaintiff  charges  that  the  accident  to  plaintiff's  decedent 
was  caused  by  the  wilful,  wanton  and  grossly  negligent  con- 
duct of  the  defendant  company's  servants  in  charge  of  the 
train  that  killed  plaintiff's  decedent  who  saw  plaintiff's 
decedent's  peril  after  she  had  gone  on  the  trestle,  in  ample 
time  to  stop,  but  did  not  use  reasonable  care  to  save  her  after 
discovering  her  peril ;  and  this  plaintiffs  are  ready  to  verify,  etc. 

Rejoinder  (Miss.) 

That  it  is  not  true  as  alleged  that  the  defendant  was  guilty 
of  the  gross  negligence  amounting  to  wilfulness  or  wanton- 
ness.   (Conclude  to  the  country) 

1667  Law  and  fact 

The  question  of  contributory  negligence  is  for  the  jury,  when 
reasonable  men  might  reach  different  conclusions,  or  different 
inferences  could  reasonably  be  drawn  from  the  admitted  or 
established  facts ;  but  the  question  is  one  of  law,  when  the  undis- 
puted evidence  clearly  and  conclusively  shows  that  the  accident 
resulted  from  the  negligence  of  the  party  who  was  injured  and 
could  have  been  avoided  by  the  use  of  reasonable  precaution.*^^ 

PEIiLOW-SERVANT 

1668  Doctrine 

An  employer  is  not  liable  for  injuries  sustained  by  an  employee 
resulting  from  the  negligence  of  another  employee,  where,  at 
the  time  of  the  injury,  both  employees  were  directly  co-operating 
with  each  other  in  a  particular  business  in  the  same  line  of 

2»T  Mueller  v.  Phelps,  252  111.  634; 
Sturm  V.  Consolidated  Coal  Co.,  249 
lU.  20. 


1132  ANNOTATED  FORMS  OP  PLEADING  AND   PRACTICE 

employment,  or  their  duties  were  such  as  to  briug  them  into 
habitual  association  so  that  they  could  have  exercised  a  mutual 
influence  upon  each  other  promotive  of  proper  caution,  and  the 
employer  was  not  guilty  of  negligence  in  employing  the  employee 
who  caused  the  injury.-''*  The  reciuirement  that  a  fellow-servant 
must  be  in  the  employment  of  a  common  employer  is  inapplic- 
able to  a  case  where  one  employer  temporarily  loans  to  another 
employer  an  employee  for  some  special  service,  the  employee 
for  the  time  becoming  wholly  subject  to  the  direction  and  con- 
trol of  the  second  employer  and  with  whose  employees  the  em- 
ployee thus  loaned  may  bear  a  relation  of  a  fellow-servant.^^* 
Aside  from  this  the  defense  of  fellow-servant  has  no  application 
to  persons  who  are  not  in  the  employ  of  the  same  employer. ^'^"^ 
An  employee  does  not  assume  such  negligence  of  a  fellow-servant 
as  is  not  the  proximate  cause  of  the  injury.^oi 

The  rule  of  fellow-servant  has  been  abolished  in  Mississippi 
as  to  employees  of  railroad  companies  and  all  other  corporations 
and  individuals  using  engines,  locomotives  or  cars  propelled 
b}'  steam,  electricity,  gas,  gasoline  or  lever  power,  and  running 
on  tracks.^'^2 

By  Virginia  constitution,  the  rule  of  fellow-servant  has  been 
abolished  as  to  all  agents  of  a  railroad  company,  whose  duty  it 
is  to  transmit  telegraphic  or  telephonic  orders  for  the  movement 
of  trains  to  their  conductors,  regardless  of  the  instrumentalities 
that  are  employed  to  accomplish  that  purpose.^^^ 

1669  Strangers 

A  stranger  cannot  invoke  the  defense  of  contributory  negli- 
gence of  a  fellow-servant  against  an  injured  party  who  is  with- 
out fault  and  who  has  no  authority  over  such  servant.^''* 

298  Illinois  Steel  Co.  v.  Ziemkowski,  soo  Chicago  &  Alton  R.  Co.  v.  Har- 

220  111.  324,  329  (1906)  ;  Bennett  v.  rington,  192  111.  9,  29  (1901). 

Chicago  City  Ey.  Co.,  243  111.  420,  soi  Shickle-Harrison      &      Howard 

428,  430  (1910);   Lyons  v.  Ryerson  Iron  Co.  v.  Beck,  212  111.  268,  272 

&    Son,    242    111.   409,    413    (1909);  (1904). 

Aldrich  v.  Illinois  Central  R.  Co.,  241  302  Sec.  4056,  Code  1906  a3  amend- 

111.  402,  405    (1909);    Crane  Co.  v.  ed  (Laws  1908,  p.  204). 

Hogan,    228    111.    338,    345    (1907);  303  Virginia    &    Southwestern    Ry. 

Indiana,   Illinois  &  Iowa  R.   Co.  v.  Co.    v.    Clower,    102    Va.    867,    874 

Otstot,  212  111.  429,  435  (1904);  Lin-  (1904);     Sec.     162,    Const.     (Va.); 

quist  V.   Hodges,   248   111.   491,   503  Sec.  1294k,  Va,  Code  Ann.  1904. 

(1911).  304  Nonn  v.  Chicago  City  Ry.  Co., 

298  Pittsburg,   Cincinnati,   Chicago  232  111.  378  (1908). 
A  St.  Louis  Ry.  Co.  v.  Bovard,  223 
111.  176,  182  (1906). 


PERSONAL  INJURIES  1133 

1670  Concurrent  negligence 

This  defense  is  likewise  imapplicable  to  an  injury  which  is 
the  result  of  the  employer's  negligence  combining  with  that  of 
a  fellow-servant  and  the  injury  would  not  have  happened  but 
for  the  employer's  negligence.^^^ 

1671  Vice-principal 

An  employer  is  not  absolved  from  liability  for  the  negligent 
performance  of  his  personal  duties  by  delegating  them  to  a  serv- 
ant of  whatever  grade,  rank,  or  authority ;  and  as  to  these  duties, 
the  rule  of  fellow-servant  does  not  apply.^^^  Among  the  non- 
delegated  personal  duties  of  the  employer  are  the  duty  to  warn 
the  employee  of  latent  defects  and  dangers  which  are,  or  ought 
to  be  known,  to  the  employer  and  of  which  the  employee,  with- 
out his  fault  is  ignorant,  and  the  duty  to  exercise  reasonable 
diligence  to  furnish  the  employee  a  reasonably  safe  place  in 
which  to  perfonn  his  work.^"'^  An  employee  who  is  given  by  his 
employer  authority  to  control  and  direct  the  movements  of  men 
under  his  charge  in  a  particular  branch  of  his  employer's  busi- 
ness, stands  in  the  place  of  the  employer  while  in  the  exercise  of 
this  authority,  and  is  not  a  fellow-servant  of  such  men,  although 
at  other  times  the  relation  of  fellow-servant  may  exist  between 
them.^'^s  An  employer  is  not  liable  for  an.  injury  received  by 
an  employee  through  the  negligence  of  the  vice-principal  who 
was  acting  as  a  co-laborer  with  the  injured  employee  and  when 
the  injury  is  not  the  result  of  the  exercise  of  the  vice-principal's 
authority;  but  an  employer  is  liable  where  the  injury  results 
from  the  negligence  of  the  vice-principal  as  such  in  combination 
with  his  negligence  as  a  fellow-servant  and  the  negligence  of  the 
employer  or  vice-principal  is  such  that  the  injury  would  not  have 
happened  but  for  his  negligence.^*^^  The  negligence  of  a  fore- 
man is  that  of  a  fellow-servant,  if  at  the  time  of  the  injury  he  was 
not  in  the  performance  of  his  duties  as  foreman.^^® 

305  Siegel.  Cooper  &  Co.  v.  Trcka,  soi  Donk  Bros.  Coal  &  Coke  Co.  ▼. 
218    111.    567;    St.    Louis    National      Thil,  supra. 

Stock  Yards  v.  Godfrey,  198  111.  288,  soe  Chicago  Terminal  Transfer  R. 

293  (1902);  Schillinger  Bros.  Co.  v.  Co.    v.    Reddick,    230    111.    105,    107 

Smith,  225  111.  74,  79  (1907);  Ken-  (1907);    East  St.  Louis  Connecting 

nedy  v.  Swift  &  Co.,  234  111.  606,  610  Ey.  Co.  v.  Meeker,  229  111.  98,  108 

(1908).  (1907). 

306  Donk  Bros.  Coal  &  Coke  Co.  v.  309  Roebling  Construction  Co.  v. 
ThiL  228  111.  233,  235  (1907);  Eog-  Thompson,  229  111.  42  (1907). 

ers  V.  Clei'eland,  Cincinnati,  Chicago  3io  Baier   v.    Seike,    211    IlL    512, 

&  St.  Louis  Rjt  Co„  211  111.  126,  132      516  (1904). 

(1904). 


1134  ANNOTATED   FORMS  OF   PLEADING  AND   PRACTICE 

1672  Miners 

The  defense  of  fellow-servant  is  inapplicable  to  miners  whose 
employment  is  forbidden  by  law.^^i 

1673  Law  ajid  fact 

The  existence  or  non-existence  of  the  relation  of  fellow-servant 
is  a  mixed  question  of  law  and  fact  depending  upon  the  court 
for  a  definition  of  the  relation  and  upon  the  jurj'  for  an  applica- 
tion of  the  facts  to  such  definition,  unless  the  facts  are  undis- 
puted, or  the  evidence  and  all  the  legitimate  inferences  to  be 
drawn  therefrom  are  such  that  all  reasonable  men  would  draw 
but  one  conclusion,  when  the  question  becomes  one  of  law.^^s 

MINE   INJURIES 

1674  Class  legislation 

Special  legislative  protection  to  miners  is  expressly  authorized 
by  the  constitution. ^^^ 

1675  Dangerous  places 

The  conspicuous  mark  must  be  put  in  the  working  place  of 
the  mine  where  the  physical  dangerous  conditions  exist,  and  a 
report  made  thereof;  and  as  thus  limited,  the  statute  imposing 
these  duties  is  valid. ^^^ 

1676  Wilful  violation  of  statute 

In  an  action  under  the  Mining  act  it  is  no  defense  that  the 
negligence  complained  of  was  not  the  result  of  a  wilful  violation 
of  the  statute.3^^ 


1677  Ordinary  care,  law  and  fact 

In  Illinois  the  only  legal  requirement  with  reference  to  a  per- 
son who  is  injured  is  that  his  conduct,  at  the  time  of  the  injury, 

311  Syneszewski  v.  Schmidt,  153  suPogers  v.  St.  Louis-Carterville 
Mich.  438,  442  (1908);  Dalm  v.  Coal  Co.,  254  111.  104,  110  (1912); 
Bryant  Paper  Co.,  157  Mich.  550,  554  Sec.  29,  art.  4,  Constitution  1870 
(1909).  (111.). 

312  Linquist   v.    Hodges,    248    111.  3i4  Cook  v.  Big  Muddy-Carterville 
504;   Aldrich  v.   Illinois  Central   R.  Mining  Co.,  249  111.  41,  47,  48  (1911). 
Co.,  241  111.  402,  406  (1909);  Lyons  sis  Eldorado   Coal   &  Coke   Co.  v. 
V.  Ryerson  &  Son,  242  111.  409,  414  Swan,  227  111.  586,  592  (1907). 
(1909) ;  Bennett  v.  Chicago  City  Ky. 

Co.,  243  111.  420,  428,  423  (1910). 


PERSONAL   INJURIES  1135 

should  be  consistent  with  what  a  man  of  ordinary  prudence  would 
do  under  like  circumstances ;  and  whether  or  not  he  has  exercised 
this  care  is  always  a  question  of  fact  to  be  determined  by  the 
circumstances  attending  the  event.  There  is  no  rule  of  law 
which  prescribes  any  particular  act  to  be  done  or  omitted  by  a 
person  who  finds  himself  in  a  place  of  danger.^i^ 

RELEASE  AND  SETTLEMENT 

1678  Covenant  not  to  sue  and  release,  distinction 

A  covenant  not  to  sue  any  one  of  two  or  more  tort  feasors  is 
no  bar  to  an  action  against  the  other  tort  feasors.^^'^  But  a 
release  to  one  of  several  joint  tort  feasors,  is  a  release  to  all;  ^^^ 
and  an  accord  and  satisfaction  with  one  of  them  is  a  bar  to  an 
action  against  the  others.^^^ 

1679  Employer's  liability,  release,  fraud 

Liability  for  injuries  resulting  from  an  employer's  negligence 
cannot  be  released  in  advance  of  injury,  as  it  is  against  public 
policy  to  enter  into  such  a  release.^^o  g^^^  ^j^g  voluntary  accept- 
ance by  an  employee  of  all,  not  merely  a  portion,  of  the  bene- 
fits provided  for  in  an  agreement  between  himself  and  the 
relief  department  of  a  corporation,  with  the  full  knowledge  that 
such  contract  prov'ided  that  the  acceptance  of  benefits  under  the 
same  should  operate  as  a  satisfaction  of  all  claims  against  the 
employer  on  account  of  injuries  received  is  a  bar  to  a  subsequent 
suit  for  such  injury .221  A  release  may  be  impeached  for  fraud 
in  an  action  at  law  where  the  fraud  inheres  in  the  execution  of 
the  instrument,  as  by  some  trick  or  device  a  party  is  made  to 
sign  an  instrument  which  he  did  not  intend  to  execute.^-^  In 
an  action  for  personal  injuries,  a  release  of  claim  for  damages 
may  be  shown  to  have  been  obtained  by  fraud  and  circumven- 
tion without  returning  the  consideration  or  annulling  the  instru- 

318  stack  V.  East  St.  Louis  &  S.  Island  &  Pacific  Ey.  Co.,  243  111.  620, 

Ry.  Co.,  245  111.  308,  310  (1910).  625  (1910). 

31T  Chicago    &    Alton    Ey.    Co.    v.  821  Eckman  v.  Chicago,  Burlington 

Averill,  224  111.  516,  522  (1906).  &  Quincy  E.  Co.,   169  111.   312,  321 

318  Wallner  v.  Chicago  Consoli-  (1897);  Pennsylvania  Co.  v.  Chap- 
dated  Traction  Co.,  245  111.  148,  151  man,  220  111.  428,  433  (1906) ;  Spitze 
(1910).  V.  Baltimore  &  Ohio  R.  Co.,  75  Md. 

319  Chicago    V.    Babcock,    143    111.  162,  168  (1892). 

358,  366  (1892).  322  Chicago  City  Ey.  Co.  v.  Uhter, 

320  Campbell     v.     Chicago,     Eock      212  111.174,176(1904). 


1136  ANNOTATED  FORMS  OP  PLEADING  AND  PRACTICE 

ment  by  decree.^ ^3  \  release  of  damages  for  personal  injuries, 
which  has  not  been  set  aside  in  a  court  of  chancery,  is  a  bar  to 
an  action  at  law  for  the  same  injuries,  where  the  releasor  waa 
mentally  capable  of  knowing  and  understanding  what  he  was 
signing  at  the  time  he  executed  the  release.  Such  a  release 
is  not  a  bar  to  the  action,  where  he  was  mentally  incompetent 
of  knowing  what  he  was  doing,  or  where  he  was  deceived  or 
tricked  into  signing  the  release.^-* 

1680  Law  and  fact 

The  release  of  damages  for  personal  injuries  is  a  question 
of  fact  when  there  is  any  evitlence  which  tends  to  show  lack  of 
mental  capacity  in  the  plaintitT  to  understand  what  he  was 
doing;  the  question  of  release  is  for  the  court  when  it  clearly 
appears  that  the  releasor  did  understand  what  he  was  signing 
and  that  it  was  a  settlement  of  his  daim.^ss 

1681  Plea  (lU.) 

And  that  after  the  happening  of  the  said  supposed  griev- 
ances in  the  said  declaration  mentioned  and  before  the  com- 
mencement of  this  suit,  to  wit,  on  the day  of , 

19. .,  at,  to  wit,  the  county  of ,  and  state  of  Illi- 
nois, the  plaintiff  by  his  deed  bearing  date  of  that  day,  and 
now  to  the  court  here  shown,  released  to  the  defendant  all 
claims  or  demands  which  he,  the  said  plaintiff,  then  had  or 
might  thereafter  have  against  the  defendant  on  account  of  the 
occurrence  of  the  said  supposed  grievances,  as  by  the  said 
deed,  reference  being  had  thereto,  will  more  fully  appear;  and 
this  the  defendant  is  ready,  etc. 

Release  in  haec  verba 

And  that  subsequent  to  the  happening  of  the  said  supposed 
grievances  above  laid  to  its  charge,  and  prior  to  the  com- 
mencement of  this  suit  the  defendant,  on,  to  wit,  the 

day  of ,  19. .,  at,  to  wit,  the  county  of , 

aforesaid,  for  the  consideration  therein  mentioned,  to  him 
then  paid  by  the  defendant,  signed,  executed  and  delivered  his 
certain  release  of  all  of  said  supposed  causes  of  action  in  said 
declaration  mentioned,  in  the  words  and  figures  following: 
(Insert  release  in  haec  verba).     And  this,  etc. 

323  Spring  Valley  Coal  Co.  V.  Buzis,  326  Turner  v.  Manufacturer's  & 
213  111.  341,  346  (1904).                           Consumer's  Coal  Co.,  254  111.  194. 

324  Turner  v.  Manufacturer 's  & 
Consumer's  Coal  Co.,  254  111.  187, 
193  (1912). 


PERSONAL   INJURIES 


1137 


1682  Replication  (111.) 

That  when,  etc.,  at  the  time  of  the  execution  and  delivery 
of  the  said  release  alleged  in  said  plea  by  the  said  plaintiff  to 
the   said   defendant,   as  alleged  in  said  plea,  that  the  said 
plaintiff  did  not  have  sufficient  mind  and  memory  and  mental 
capacity  to  know  and  understand  the  nature,  effect  and  pur- 
port of  the  said  paper,  described  in  said  plea  as  a  deed  and 
release ;  that  the  said  plaintiff  at  said  time  did  not  have  suffi- 
cient mind  and  memory  and  mental  capacity  to  know,  under- 
stand or  appreciate  the  effect  of  said  instrument,  or  of  the  ordi- 
nary affairs  and  transactions  of  life;  and  that  plaintiff  was 
then  and  there  blind  and  unable  to  see  and  did  not  know  the 
nature,  effect  and  purport  of  said  instrument ;  and  being  then 
and  there  in  said  state  of  mind  and  mental  condition  was 
fraudulently  induced  and  persuaded  to  sign  the  said  instru- 
ment by  the  agents  and  representatives  of  the  said  defendant 
corporation  and  those  acting  in  concert  with  them,  not  know- 
ing that  said  instrument  was  a  release  of  the  cause  of  action  set 
forth  in  his  declaration;  and  that  at  said  time  the  defendant 
corporation  and  its  said  agents  and  representatives  and  those 
acting  in  concert  with  them  then  and  there  knew  that  said 
plaintiff   did   not   have   sufficient    mental   capacity   to   know, 
understand  and  appreciate  the  nature  and  effect  of  the  said 
instrument,  or  of  his  acts,  on  account  of  the  injuries  sustained  by 
the  said  plaintiff  and  complained  of  by  him  in  his  said  declara- 
tion, and  defendant  did  then  and  there  fraudulently  procure 
and  obtain  the  release  from  the  plaintiff  for  the  fraudulent 
and  unlawful  purpose  of  securing  an  unjust  advantage  of  the 
plaintiff ;  and  this  the  defendant  is  ready,  etc. 

1683  Rejoinder 

That  at  the  time  of  the  execution  nna  delivery  of  the  said 
release  above  mentioned  the  plaintiff  did  have  sufficient  mind 
and  memory  and  mental  capacity  to  know  and  understand  the 
nature,  effect  and  purport  of  the  same  and  to  appreciate  the 
effect  of  the  said  instrument  and  of  the  ordinary  affairs  and 
transactions  of  life,  and  that  the  plaintiff  did  then  know  the 
nature,  effect  and  purport  of  the  said  instrument  and  was  not, 
while  mentally  incapacitated,  fraudulently  induced  and  per- 
suaded to  sign  the  said  instrument  by  the  agents  and  repre- 
sentatives of  this  defendant,  not  knowing  said  instrument  was 
a  release  of  the  cause  of  action  set  out  in  the  declaration; 
and  that  this  defendant  did  not  then  fraudulently  procure  and 
obtain  said  release  from  the  plaintiff  for  the  fraudulent  and 
unlawful  purpose   of   securing   an   unjust   advantage   of   the 
plaintiff.     (Conclude  to  the  county) 


1138  ANNOTATED   FORMS  OP   PLEADING   AND   PRACTICE 

1634  Bes  ipsa  loquitur 

The  rule  that  the  accident  or  injury  sustained  by  the  plain- 
tiff bespeaks  the  defendant's  wrong  (res  ipsa  loquitur)  has  no 
application  to  a  personal  injurj'  which  is  the  result  of  a  pure 
accident  to  a  peron  to  whom  the  defendant  owes  no  absolute 
duty  except  that  of  exercising  due  care  to  avoid  injurj'  gener- 
3Uy  326  The  rule  or  maxim  of  res  ipsa  loquitur  pertains  to  evi- 
dence, and  not  to  pleading ;  ^27  and  applies  only  where  a  machine, 
appliance,  or  thing  from  which  the  injurj'  results  is  shown  to 
be  under  the  management  of  the  defendant  and  the  accident  is 
such  as  in  the  ordinarj-  course  of  things  does  not  happen  if 
those  in  control  use  proper  care.^-*  It  is  applicable  to  certain 
railway  accidents,  but  not  to  the  relation  of  employer  and 
employee.^-® 

1685  Sidewalk  acddent 

In  an  action  against  a  municipality  for  personal  injuries  sus- 
tained upon  a  sidewalk,  the  defense  that  the  declaration  does 
not  count  upon  the  statute  cannot  be  raised  under  the  general 

issue. ^^"^ 

1686  Statute  of  limitations,  pleas  (District  of  Columbia) 

That  the  action  for  damages  alleged  and  set  forth  in  said 
declaration  was  not  brought  within  one  year  after  the  death 

of  the  party  injured,  to  wit.  plaintiff's  intestate  

as  required  by  section  1302  of  the  Code  of  the  District  of 
Columbia. 

b 

That  said  amended  declaration  sets  forth  a  new  cause  of 
action  differing  from  that  set  forth  and  alleged  in  the  original 
declaration  and  which  cause  of  action  accrued,  on.  to  wit,  the 

day  of ,  when  the  plaintiff's  intestate,  said 

died  and  no  action  was  brought  therefor,  until 

the   day  of   ,  the  date  of  the  filing  of  said 

amended  declaration,  which  was  more  than  one  year  after 
said  death,  contrary  to  the  statute  in  such  case  made  and 
provided. 

326  Chicago  &  Eastern  Illinois  E,  104     (1S99);    c    4071,    Acts    1891 

Co.  V.  ReillT,  212  lU.  506  (1904).  (Fla."). 

32T  Chicago  Union  Traction  Co.  v.  3 so  Fuller   v.    Jackson    (City),    82 

Giese,  229  IlL  260,  263  (1907).  Mich.    4S0.    4S2     (1S90)  ;    Clark    v. 

328  Illinois  Central  R.  Co.  v.  Swift,  North  Muskegon,  S8  Mich.  308,  310 

213  111.  307,  316  (1904).  (1S91). 

»2»  Green  v.  Sansom,   41   Fla.  94, 


PEBSOKAL  INJUEIES  1139 

(Illinois) 

That  the  said  several  supposed  causes  of  action  in  said 
additional  counts  mentioned  did  not,  nor  did  any  or  either  of 
them,  accrue  to  the  plaintiff  at  any  time  within  one  year  next 
before  the  filing  of  the  said  additional  counts,  in  manner  and 
form  as  the  plaintiff  has  above  thereof  in  said  additional 
counts  and  each  of  them  complained  against  it,  and  because 
the  original  declaration  filed  herein  and  each  count  thereof 
wholly  failed  to  and  did  not  state  a  cause  of  action  against 
this  defendant.  And  this  the  defendant  is  ready  to  verify; 
wherefore  this  defendant  prays  judgment  if  the  plaintiff  ought 
to  have  his  aforesaid  action  against  this  defendant. 

1687  Statute  or  ordinance,  violation 

To  bar  a  recovery  on  the  ground  of  the  violation  of  an  ordi- 
nance, it  must  appear  that  such  violation  was  the  proximate 
and  efficient  cause  of  the  injury .^^i 

GENERAL  ISSUE 

1688  Notice  of  claim 

The  defense  that  no  notice  of  claim  for  personal  injuries  was 
ser\-ed  upon  a  municipality  prior  to  the  bringing  of  an  action 
against  it,  may  be  urged  under  the  general  issue.^^^  ^  munici- 
pality does  not  waive  its  right  to  insist  upon  the  giWng  to  it  of 
notice  of  claim  required  by  statute  as  a  condition  precedent  to 
the  bringing  of  an  action  upon  it,  by  attempting  to  arbitrate  or 
to  adjust  the  claim  before  the  bringing  of  the  action. 333  But 
such  a  defense,  being  in  the  nature  of  a  personal  privilege,  like 
a  right  to  insist  upon  the  statute  of  limitations,  is  waived  if  it  is 
not  interposed  before  verdict  and  judgment.^^* 

1689  Ownership  and  control 

A  plea  of  not  guilty  to  a  declaration  for  personal  injuries 
alleging  the  ownership  of  a  railroad  and  its  operation  by  the  de- 
fendant, admits  the  corporate  existence  of  the  defendant,  the 
operation  of  the  particular  line  of  railroad  mentioned  in  the 
declaration  and  the  operation  of  the  train  causing  the  injury  by 

331  star  Brewery  Co.  v.  Hauck,  222  334  Canfield  v.  Jackson  (City),  112 
111.  352.                                                          Mich.  120  (1897);  Clark  v.  Davisoir 

332  Clark  V.  Davison  (VUlage),  118       (Village),  118  Mich.  423. 
Mich.  420,  424  (1898). 

333  Clark    V.    Davison     (Village), 
supra. 


1140  ANNOTATED   FORMS  OF   PLEADINQ   AND   PRACTICE 

its  employees;"'  but  it  does  not  put  in  issue  the  ownership  and 
operation  of  the  particular  ear  which  caused  the  injury. ^^*  A 
plaintiff,  however,  is  not  re(|uired,  under  the  general  issue  to 
prove  the  defendant's  ownership  of  the  property  or  the  iustru- 
mentalities  which  caused  the  injury,  such  ownership  bvinp  matter 
of  inducement. ^''^  In  personal  injury  caws  the  defendant  must 
plead  specially  that  he  is  not  the  owner,  or  in  po.siwwsion  or 
operation  of  the  property  or  instrumentalities  which  caused  the 
injury'.*'^* 

1690  Relea,se  and  settlement 

In  an  action  for  jutsoii.-iI  injuries  a  settlement  with  nrul  a 
release  from  a  former  administrator  of  the  claim  sued  upon  is 
admissible  in  evidence  under  the  general  issue. ^^' 

1691  Survivorship 

A  phiintitT  is  hound  to  prove  under  the  general  i.ssue  the  fact 
of  survivorship  of  a  widow  or  next  of  kin  and  wlio  they  are.^*** 

GROUNDS  OF  DEFENSE 

1692  Form  (Va.) 

1.  The  defendant  denies  all  allegations  of  negligence  in  the 
declaration  and  each  count   thereof. 

2.  The  defendant  denies  that  it  was  negligent  in  failing  to 
apply  ^litable  appliances  and  instrumentalities;  and  on  the 
contrary  says  that  the  same  were  in  safe  and  proper  condition. 

3.  The  defendant  denies  that  it  failed  to  perform  any  le^'al 
duty  as  to  inspecting  or  keeping  in  safe  condition  and  repair 
its  appliances  and  instrumentalities. 

4.  The  plaintiff  assumed  the  risk. 

5.  The  plaintiff  was  guilty  of  negligence  on  his  own  behalf 
wTiich  caused,  or  contributed,  to  his  injury. 

335  Chicago  &  Eastern    Illinois   R.  3s«  Brunhild     v.     Chicago     Union 

Co.    V.    Schmitz,    211     111.    44ri,    4o9  Traction     Co.,     L'39     111.     621,     624 

(1904);   Pell  v.  Joliet,  Plainfield  v.  (1909). 

Aurora    R.    Co..    238    111.    510,    514  s3t  Chicago  Union  Traction  Co.  v. 

(1909);  Chicago  Union  Traction  Co.  Jerka,  227   111.  100. 

V.    jcrka,    227    111.    95,    99    (1907);  ass  Chicago  Union  Traction  Co.  v. 

Winn  V.  Cleveland,   Cincinnati,  Chi-  Jerka,  supra, 

cago  &   St.   Louis  Rv.   Co.,   239   111.  339  Balsewicz  v.  Chicago,  Burling- 

132,    142,   143    (1909);    McNulta  v.  ton   &   Quincy  R.   Co.,   240  111.   238, 

Lockridge,     137     111.     270     (1891);  247  (19(i9). 

Pennsylvania   Co.    v.   Chapman,    220  s*o  Quincy   Coal   Co.   v.   Hood,   77 

111.  431.  111.  68,  73  (1875). 


PERSONAL   INJURIES  H^l 

MISCELLANEOUS 

1693  Assiffmnent  of  right  of  action  (Miss.) 

Tn    onnsideration    of    legal    services    rendered    and    to    be 
In    consideration    oi       ^       .  ^  ^^,^^  ^nd  convey  unto 

rendered,  I,    -        ^   '  i     vi^q  inter- 

.  .,  my  attorneys,  an  undivided iii^' 

est  in  and  to  mv  right  of  action  against  the •••'/"; 

iniuries  inflicted  upon  the  property  by  burning,  which  right 

of'aclLn  is  set  forth  in  the  above  styled  cause  in  this  court. 
Witness,  etc. 

^^Per^'sonally     appeared     before     the     undersigned     officer, 

:,„med ''.'..,  ^vho  acknowledged  that  he  signed  and 

SelTvered'the    foregiing    assignment    on    the    day    and    date 

thereof. 

Witness,  etc. 

1694  Assignment  and  retainer  (Miss.) 

This  is  to  cenUy  that  1 • have  this  day™. 

ployed   ...., •••.  "f  'he  firm  o£   ■  •  •  •  -  - -;,,f]tw7ul 

and  counsellors  at  law,  of   ;••':'     Y  i  L.^i.wt  th.^ 

attorneys  to  prosecute  the  cause  of  action      have  agaui.t  the 
for  iniuries  sustained  by  me  on  the  . ... ....  tiay 

;,:• '   19.  .,  in  the  city  of  and  state  aforesaid,  witii  the 

full  uower  to' settle  said  claim,  by  compromise  or  otherwise, 
whether  1  am  present  or  not,  and  do  all  lawful  acts  that  are 
to  be  done  in  the  premises.  And  be  it  known  that,  in  consid- 
eration of  the  services  performed  and  to  be  performed,  I  do 
berebv  siffn  transfer,  set  over,  and  deliver  to  saia  ... •  •  •  •  •, 

per  cLt^^^^^^^  of  ^11  "^y  ''^^^'  '^^''"'^  ^""^ 

I  have  in  said  claim. 
Witness,  etc. 

^^TWs'dav  personally  appeared  before  me  the  undersigned 

insuument,  ou  the  day  and  year  theren.  mentioned. 
Given,  etc. 

1695  Attorneys'  fees,  motion  (111.) 

And  now  comes  plaintiff  by ,  ^J'/^^^Trn;t^'!ff 

oVes  °he  court  to  tax  reasonable  attorneys'  fees  as  cost  of 


moves 
suit 


By 

his  attorneys. 


1142  ANNOTATED   FORMS  OF    PLEADING  AND   PRACTICE 

1696  Attorneys'  fees,  judgrment  (111.) 

This  clay  again  como  the  i»artit'8  to  this  suit  by  their  attor- 
neys respectively  and  the  plaintiff  asks  for  a  final  judgment 
upon  the  verdict  herein  and  for  plaintiffs'  attorneys'  fees. 
Therefore  it  is  considered  by  the  court  that  the  plaintiff  do 
have  and  recover  of  and  from  the  defendant  his  said  damages 

of dollars  in  form  as  aforesaitl  by  the  jury  assessed 

together  with  his  costs  and  charges  in  his  behalf  expended; 
and  it  is  further  considered  by  the  court  that  the  plaintiff  re- 
cover the  sum  of dollars  as  his  attorneys'  fees  to  be 

taxed  as  costs. 

attorney's  lien 

1697  Nature  and  scope 

The  Illinois  statute  creates  u  lien  upon  the  cause  of  action  in 
favor  of  the  attorney,  reijuiring  the  defendant,  after  due  notice 
of  the  lien,  in  making  settlement  with  the  party  as  to  sur-li  cause 
of  action,  to  take  into  account  his  liability  to  the  attorney  for 
whatever  amount  of  fees  would  accrue  under  his  contract  at  the 
time  of  the  settlement;  and  if  such  lien  is  ignored,  the  defendant 
will  be  required  to  account  to  the  attorney  in  an  appropriate 
proceeding  for  the  amount  of  the  lien.^**  The  statute  which 
creates  an  attorney's  lien  is  not  class  legislation,  does  not  inter- 
fere with  the  right  of  contract,  and  is  valid. ^^-  Under  the  stat- 
ute, the  lien  of  an  attorney  attaches  from  and  after  the  8er\'ice 
of  notice  and  protects  the  attorney  against  any  settlement  that 
might  thereafter  be  made,  regardless  of  whether  the  suit  had 
been  commenced,  was  pending  or  had  been  finally  determined  by 
the  rendition  of  a  judgment. ^■'^ 

1698  Notice  (Dl.) 

To    : 

Having    been    employed    as   attorney    at    law    by    each    of 

,  of    county,    Illinois,   to   prosecute 

their  joint  and  several  claims  against  you  for  personal  injuries 
sustained  by  them,  by  one  of  your  cars  striking  an  auto- 
mobile in  which  they  were  riding  at street  and 

avenue,   in    county   and   state   of 

Illinois,   at    o'clock,    on    ,    19..,    this   is   to 

notify  you  that  I  have  and  claim  a  lien  for  an  attorney's  fee 

3^1  Standidge  v.  Chicago  Rys.  Co.,  243  Standidge  v.  Chicago  Rys.  Co., 

254  111.  524,  535  (1912) ;  1909  Laws,      ^pra. 
p.  97. 

342  Standidge  v.  Chicago  Rys.  Co., 
254  111.  533,  534. 


PERSONAL   INJURIES  1143 

for  services  rendered  and  to  be  rendered  in  regard  to  each 
of  said  claimants,   the   fee  in  each   of  said  claim  being  for 
of  whatever  money,  if  any,  should  be  paid  by  rea- 
son of,  or  in,  their  settlement. 
Dated,  etc. 


Attorney  for  each  of  said  claimants. 
(Add  proof  of  service) 

1699  Petition,  filing 

The  constitutional  uniformity  of  procedure  is  not  substan- 
tially affected  by  the  filing  of  a  petition  for  an  attorney's  lien 
in  a  cause  from  which  the  lien  has  arisen.^-** 

1700  Petition  (111.) 

(Caption  in  personal  injury  case) 

To  the  honorable  judge  of  said  court : 

Your  petitioner,   ,  respectfully  represents  unto 

your  honor  that  he  is  attorney  for  the  plaintift'  in  the  above 
entitled  cause,  and  as  such  attorney  brought,  filed  and  prose- 
cuted said  cause  for  and  on  behalf  of  said  plaintiff,  under  an 
agreement  made  prior  to  the  time  of  the  bringing  and  filing 
of  said  cause,  between  your  petitioner  and  said  plaintiff,  that 
your  petitioner  should  bring,  file  and  prosecute  said  cause 
for  the  collection  of  damages  for  injuries  to  said  plaintiff  at 
the  time  and  place  and  in  the  manner  described  in  the  declara- 
tion of  the  i)laintiff  filed  heretofore  herein,  and  that  for  so 

doing  your  petitioner  should  receive of  whatever 

amount,  if  any,  should  be  paid  by  the  defendants  in  settle- 
ment of  the  claim  of  said  plaintiff  for  damages  as  aforesaid, 

namely,  an  amount  equal  to   of  the  amount,  if 

any,  to  be  received  by  the  plaintiff  in  settlement  of  soich 
claim;  that  about  one  year  after  the  filing  of  said  cause  in  said 

court,  the  defendants,  through  their  successor  the , 

paid  to  the  plaintiff,  as  your  petitioner  is  informed  and  be- 
lieves,      dollars  in  settlement  of  said  claim ;  that 

long  prior  to  the  time  when  said  defendants,  through  their 

said  successor,  paid  to  the  plaintiff   ,  said  sum 

in  settlement  of  said  claim  as  aforesaid,  your  petitioner 
served  upon  said  defendants  notices  in  writing  claiming  an 
attorney's  lien  for  his  services  rendered  and  to  be  rendered 

herein   for    of  whatever  money,   if  any,   should 

be  paid  to  the  plaintiff  in  settlement  of  said  claim,  namely, 

an  amount  equal  to of  the  amount  to  be  received 

by  the  plaintiff  in  settlement  thereof,  and  stating  in  such 
notices  that  your  petitioner  had  an  interest  in  said  claim  of 
the  plaintiff  for  the  amount  and  to  the  extent  of  such  lien, 

344  Standidge  v.  Chicago  Rys.  Co., 
254  111.  533. 


1144  ANNOTATED   FORMS  OF    PLEADING   AND   PILVCTICE 

under  and  as  provided  in  "An  Act  creating  attorney's  lien 
and  for  enforcement  of  same,"  wliieh  Act  at  the  time  of  the 
filing  of  said  cause  was,  ever  since  has  been,  and  still  is,  in 
force  as  law  in  the  siate  of  Illinois;  that  after  the  service  of 
said  notices  upon  said  defendants  and  before  the  time  of  the 
payment  by  said  defendants,  through  their  said  successor,  of 
said  sura  of  money  in  settlement  of  his  said  claim  for  damages 
as  aforesaid,  said  defendants  were  duly  discharged  as  receiv- 
ers of  the  said   by  order  of  the  court  by  which 

they  were  appointed  to  act  as  such,  and  the  said 

thereupon  became  their  successor,  and  ever  since  has  con- 
tinued to  be,  and  is  now,  such  successor. 

Your  petitioner  further  represents  that  said  defendants  and 

their  said  successor,  the   have  refused,  and  still 

refuse  to  pay  to  your  petitioner  the  amount  due  to  him  under 
said  lien,  and  he  has  not  received  from  anyone  any  part  of 
the  amount  so  due  to  him  under  said  lien;  and  he  therefore 
prays  this  honorable  court  to  adjudicate  the  rights  of  the 
parties  hereto  and  enforce  your  i)etitioner's  said  lien  as  pro- 
vided in  said  "Act  creating  attorney's  lien  and  for  enforce- 
ment of  same." 


Petitioner. 
(Verification) 

1701  Order 

This   cause  coming  on  to   be   heard   upon  the   intervening 

petition  of   ,  and  the  answer  of  the  defendants 

and  their  successor  the  ,  to  said  petition  hereto- 
fore filed  herein,  and  it  appearing  to  the  court  that  five  days' 
notice  has  been  given  by  said  intervening  petitioner  to  said 
defendants  and  their  said  successor  of  such  hearing  on  said 
petition,  and  the  court  having  heard  the  evidence  introduced 
by  said  intervening  petitioner  and  said  defendants  and  their 
said  successor  and  being  fully  advised  in  the  premises,  doth 
find  that  the  allegations  of  said  petition,  and  each  thereof  are 
true,  and  that  by  reason  thereof  there  is  due  from  said  defend- 
ants and  their  said  successor  to  said  intervening  petitioner  the 
sum  of dollars. 

Now,  therefore,  the  court  orders,  adjudges  and  directs  that 

said  defendants  and  their  successor  the  ,  pay  to 

said  ,  intervening  petitioner,  instanter,  said  sum 

of dollars,  and  that  upon  their  failure  to  do  so, 

the  clerk  of  said  court  shall  issue  execution  forthwith  in  favor 

of  said  intervening  petitioner  and  against  said   , 

successor  of  said  defendants,    ,  receivers  of  the 

therefor  and  for  the  collection  thereof. 


CHAPTER   XXIV 
COVENANT 

IN  GExXERAL  §§ 

§§  1708  Insurance,  fire,  action 

1702  Instruments,  nature  1709  Promissory  note,  Xarr. 

1703  Trust  deed 

SPECIAL  DEFENSES,  PLEAS, 
PARTIES  ETC. 

1704  Assignees  1710  Pleading 

SPECIAL  CAUSES  AND  ^^^^  Covenant     performed,     plea, 

DECLARATIONS  nature 

170r,  Covenant  of  title,  action  GENERAL  ISSUE 

170G  Covenant  of  title,  declaration  j^jg  At  common  law 

re<^iuisites 

1707  Covenant  of  seizen,   declara  VERDICT  AND  JUDGMENT 

tlou  rcHjulsites  1713  Generally 

IN  GENERAL 

1702  Instruments,  nature 

The  action  of  covenant  may  be  based  upon  a  deed  under  seal 
executed  by  a  person,  or  in  his  behalf;^  or  the  action  may  be  main- 
tained upon  an  instrument  which  is  not  in  fact  sealed,  but  which 
was  intended  to  operate  as  a  deed.  At  common  law  it  was  not 
necessary  to  the  maintenance  of  the  action  that  there  should 
an  actual  seal  to  the  instrument  sued  upon. 2  Thus,  contracts 
executed  on  the  same  day,  by  the  same  parties,  concerning  the 
same  subject  matter,  and  made  to  depend  upon  each  other,  con- 
stitute one  agreement  and  will  support  an  action  of  covenant 
if  one  of  them  is  under  seal.^ 

It  is  permissible  in  Michigan  to  declare  in  assumpsit  where- 
ever  the  action  of  covenant  would  be  appropriate;  but  upon 
making  the  election,  the  plaintiff's  rights  will  be  governed  by 
the  form  and  not  by  the  nature  of  his  cause  of  action.* 

1  Rockford,  Rock  Island  &  St.  3  Horner  'b  Adm  'r  v.  Ebersole,  83- 
Louis  R.  Co.  V.  Beckemeier,   72  111.       Va.  76.5,  767  (1887). 

267    (1874);    Haynes   v.    Lucas,   50  « Christy  v.  Farlin,  49  Mich.   319 

111.4.36,438(1869).  (1882);      (10,417),     C.     L.      1897 

2  Jerome  v.  Rothschild,   66  Mich.  (Mich.). 
668  (1887). 

1145 


1146  ANNOTATED    FORMS   OF    PLEADING    AND    IMUCTICE 

1703  Trust  deed 

A  trust  deed  which  does  not  contain  an  express  covenant  or 
promise  to  pay  a  debt,  being  a  mere  security,  cannot  be  niado 
the  basis  for  an  action  of  covenant.'* 

PARTIES 

1704  Assignees 

On  covenant  running  with  the  land,  as  a  warranty  of  title, 
an  assignee  may  sue  fur  a  breach  of  the  warranty  in  his  own 
name.  But  on  covenants  in  present i,  as  covenant  of  seizin  and 
power  to  sell,  and  assignee  must  sue  in  the  name  of  the  cov- 
enantee." 

SPECIAL  CAUSES  AND  DECLARATIONS 

1705  Covenant  of  title,  action 

A  covenant  of  warrtinty  of  title  is  prospective  and  is  broken 
upon  eviction  or  its  equivalent.  The  covenant  of  seizin  or  of 
power  to  sell  is  a  covenant  in  prcscnti,  and  is  broken  as  soon  as 
made  if  the  grantor  has  no  title  at  the  time  he  enters  into  it.'^ 

1706  Covenant  of  title,  declaration  requisites 

A  declaration  which  is  based  upon  a  breach  of  warranty  of 
title  must  aver  specilically  the  manner  and  the  (juality  of  com- 
plete eviction,  or  the  acts  which  constitute  its  equivalent.®  In 
an  action  of  covenant  by  an  assignee  upon  a  general  warranty 
of  title  it  is  not  necessary  to  aver  in  the  declaration  that  the 
plaintiff's  guarantor  also  warranted  the  title  to  the  assignee, 
nor  that  such  guarantor  has  performed  his  covenants  with  the 
defendant.^ 

1707  Covenant  of  seizin,  declaration  requisites 

In  an  action  for  a  breach  of  covenant  of  seizin  a  general 
assignment  of  the  breach  is  insufficient  to  sustain  the  action, 
unless  the  title  is  specially  put  in  issue  by  the  defendant's  plead- 
ing. The  declaration  should  specifically  point  out  defects,  if 
any,  in  the  title.^** 

8  Wolf  V.  Violett  's  Adm  'r,  78  Va.  s  Brady  v.  Spurck,  27  111.  482. 

57,  60  (1883).  9  Brady  v.  Spurck,  27  111.  481. 

6  Brady  v.  Spurck,  27  111.  478,  481  lo  Ingalls  v.    Eaton,   25   Mich.    32 

(1861).  (1872). 

f  Brady  v.  Spurck,  supra. 


COVENANT  1147 

1708  Insurance,  fire,  action 

At  common  law  the  proper  form  of  action  upon  a  fire  insur- 
ance policy  is  covenant,  if  the  policy  is  under  seal  and  is  in 
existence.  In  Illinois,  the  action  upon  an  insurance  policy  may 
be  assumpsit.  ^^ 

1709  Promissory  note,  Narr.  (Va.) 

^2  For  this,  to  wit,  that  heretofore,  to  wit,  on  the 

day  of ,  during  the  life  time  of  said , 

at   ,  the  said  defendant,  by  her  certain  writing 

obligatory,  sealed  with  her  seal,  and  now  to  the  court  here 
shown,  the  date  whereof  is  the  day  and  year  aforesaid,  acknowl- 
edged  herself   to   be   held   and   firmly    bound   unto   the   said 

,  for  value  received,  in  the  sum  of 

dollars,  with  interest  at   per  cent  from    

until  paid,  to  be  paid  to  the  said    on  demand 

which  she,  the  said   ,  covenanted  thereby  to  do. 

Said  bond  is  in  tiie  words  and  figures  following  (Insert  note 
or  bond)  and  upon  the  back  of  said  bond  are  the  following 
credits  (Insert  credits). 

And  the  said  plaintiff  in  fact  saith  that  although  the  said 
plaintiff,  executor  as  aforesaid,  since  the  death  of  the  said 

,  and  the  said ,  during  his  life  time, 

have  always,  from  the  time  of  making  said  writing  obligatory 
until  hitherto,  well  and  truly  performed  and  fulfilled  and  kept 

all  things  therein  contained  on  the  pait  of  said 

to  be  done  and  kept  according  to  the  tenor  and  effect,  true 
intent   and   meaning   of   the   said  writing   obligatory,   and   of 

which,  the  plaintiff",   executor  as  aforesaid  since 

the  death  of  the  said ,  and  the  said 

during  his  life  time  often,  since  the  making  of  the  said  writing 

obligatory,  demanded  of  the  said   the  payment 

of  the  aforesaid  sum  of  money  and  interest  as  aforesaid ;  yet, 
that  the  said  defendant  since  the  making  of  the  said  writing 
obligatory  hath  not  performed,  fulfilled  and  kept  the  said  cove- 
nant and  promise  in  the  said  writing  obligatory  contained  on 
her  part  to  be  fulfilled,  and  kept  according  to  the  tenor  and 
effect,  true  intent  and  meaning  of  the  said  writing  obligatory, 
especially  in  this,  that  the  said  defendant  hath  not  paid  to  the 
plaintiff,  executor  as  aforesaid,  since  the  death  of  the  said 

,  nor  to  the  said during  his  life  time, 

the  said  sum  of  dollars  and  interest  and 

per  cent  thereon   from    ,  as  aforesaid,   nor  any 

part  thereof  except dollars,  to  wit, , 

said  payments  being  applied  first  on  account  of  interest  afore- 

11  Rockford  Ins.  Co.  v.  Nelson,  65  12  See  Section  211,  Note  60. 

111.  415,  424  (1872);  Sec.  33,  Prac- 
tice act  1907  (III.). 


1148  ANNOTATED    FOKMS   OF    PLEADING    AND    PRACTICE 

said,  due  on  the  days  of  the  said  payments  respectively,  and 
then  on  account  of  the  principal  of  said  sum  of  money  cov- 
enanted to  be  paid  as  aforesaid;  but  the  same  to  pay  hath 
hitherto  wholly  failed  and  refused,  to  the  plaint itT  since  the 
death  of  said and  to  the  said dur- 
ing his  life  time,   and  still  doth  fail  and  nfuse 

contrary  to  the  form  and  effect  of  the  said  writing  obligatory 
and  of  the  said  covenant  of  the  said  defendant  so  by  her 
made  in  that  behalf  as  aforesaid. 

By  reason  of  all  which  said  premises,  the  said  plaintiff  since 
the  death  of  said and  the  said dur- 
ing his  life  time  have  not  only  been  deprived  of  said  snim  of 
money,  with  interest  thereon,  as  aforesaid,  and  divers  other 
sums  of  money,  amounting  in  the  whole  to  a  large  sura,  to  wit. 

the  sum  of dollars,  but  have  also  been  obliged 

to  pay  certain  costs,  expenses  and  charges,  amounting  to  a 

large  sum  of  money,  to  wit,  the  sum  of dollars, 

in  and  about  endeavoring  to  collect  the  said  sum  of  money 
and  interest  as  aforesaid. 

SPECIAL  DEFENSES,  PLEAS,  ETC. 

1710  Pleading 

Each  distinct  breach  of  covenant  is  a  separate  cause  of  action 
to  which  a  defendant  may  plead  specially.^^ 

1711  Covenant  performed,  plea,  nature 

A  plea  of  covenant  performed  traverses  all  of  the  covenants 
except  the  execution  of  the  instrument  and  the  performance  of 
covenants  by  the  plaintiff.^* 

GENERAL  ISSUE 

1712  At  common  law 

In  covenant  there  is  no  general  issue  at  common  law.  Neither 
a  plea  of  non  est  factum,  nor  does  a  plea  of  covenants  per- 
formed amount  to  a  plea  of  the  general  issue.* ^  Under  ]\Iichi- 
gan  practice  the  general  issue  to  a  declaration  which  merely 
assigns  a  breach  of  covenant  of  seizin  does  not  put  in  issue  the 
defendant's  title. *« 

VERDICT  AND  JUDG^rENT 

1713  Generally 

The  form  of  verdicts  and  judgments  in  this  form  of  action 
are  similar  to  verdicts  and  judgments  in  actions  of  assumpsit. 

18  Brady  v.  Spurck,  27  111.  482.  is  Reeves  v,  Forman,  supra. 

1*  Reeves  v.  Forman,  26  111.  313,  lo  Ingalls  v.  Eaton,  supra. 

319  (1861). 


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